Appendix — Tanner v. McCall
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Office- Supreme Court, U.S.
FIL E\WD
80-1227 MAR 6 1981
ALEXANDER L. STEVAS,
CLERK
No.
IN THE SUPREME COURT
OF THE UNITED STATES
OCTOBER TERM, 1980
BOBBY F. TANNER, NED A. KNUTH,
CAROL CAMPBELL, TOMMY CARLISLE,
JOSEPH DAVENPORT, and FRANCIS
UGOREK, :
Petitioners, :
vs.
MALCOLM McCALL, :
Respondent. :
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Peter Kent Spriggs
117 South Martin Luther King Boulevard
Tallahassee, Florida 32301
(904) 224-8701
Attorney for Petitioners
APPENDIX
Page
Opinion, U.S. Court of Appeals, Fifth Circuit............ A-1
Order Denying Motion for Rehearing,
U.S: Count of Appeals, HR CWCet. . 0. ovccccscrevenses A-2
Order, U.S. District Court,
UIE UME cod ccc c cc ccccddovescccesbans A-24
Opinion, U.S. District Court,
Re ii cccdswenocedpas anand A-26
Order, Summary Final Judgment,
U.S. District Court, Middle District of Florida .......... A-32
Opinion, U.S. District Court,
RE CU sn. co neesb cose vei uceean A-33
TANNER v. McCALL
Bobby F. TANNER, Plaintiff-Appellee, Appellant,
Ned A. Knuth et al., Plaintiffs-Appellees, Cross-Appellants,
v.
Malcolm McCall, individually and in his official capacity as
Sheriff of Lake County, Florida, Defendant-Appellant, Cross-
Appellee.
No. 78-3211.
United States Court of Appeals,
Fifth Circuit.
Sept. 17, 1980.
A civil rights suit was brought against sheriff by five former
deputies and a former secretary who alleged that patronage con-
siderations unlawfully motivated defendant’s decision not to
reappoint them. The United States District Court for the Middle
District of Florida, at Ocala, Charles R. Scott, J., entered a
judgment from which appeals and a cross appeal were taken.
The Court of Appeals, Fay, Circuit Judge, held that plaintiffs
did not meet their burden of proving that political discrimina-
tion was a substantial or motivating factor in defendant’s
employment decision; the objective manifestations did not sup-
ply inferences rising to the level of proof of a subjective intent
of political animus.
Affirmed in part and reversed in part.
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October 16, 1980
TO ALL PARTIES LISTED BELOW:
NO. 78-3211 - BOBBY F. TANNER; NED A. KNUTH,
ET AL. -vs- MALCOLM McCALL, Etc.
Dear Counsel:
This is to advise that an order has this day been entered denying
the petition ( ) for rehearing, and no member of the panel nor
Judge in regular active service on the Court having requested
that the Court be polled on rehearing en banc (Rule 35, Federal
Rules of Appellate Procedure; Local Fifth Circuit Rule 16) the
petition ( ) for rehearing en banc has also been denied.
See Rule 41, Federal Rules of Appellate Procedure for issuance
and stay of the mandate.
Very truly yours,
GILBERT F. GANUCHEAU, Clerk
AMENDED
JUDGMENT
O.R. Book 666 page 1224
This action came on for trial before the Court and a jury,
Honorabie CHARLES R. SCOTT Senior, United States
District Judge, presiding, and the issues have been duly tried
and the jury having duly rendered its verdict,
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TANNER v. McCALL
It is Ordered and Adjudged
That the Plaintiff Bobby F. Tanner take nothing, That the
action be dismissed on the merits and that the Defendant
Malcolm McCall in his capacity as Sheriff of Lake County,
Florida recover of Plaintiff Bobby F. Tatiner his costs of action;
It is further ordered and adjudged that the Pitf. Ned A.
Knuth recover of the Defendant Malcolm McCall in his capacity
as Sheriff of Lake County, Florida, the sum of TWENTY
THOUSAND and no/100 DOLLARS ($20,000.00) with interest
thereon at the legal rate as provided by law and costs of action...
It is further ordered that the Pitf. Carol A. Campbell
recover of the Deft. Malcolm McCall in his capacity as Sheriff
of Lake County, Florida the Sum of TEN THOUSAND and
no/100 DOLLARS ($10,000.00) with interest thereon at the
legal rate as provided by law and his costs of action.................
It is further ordered that the Pitf. Tommy Carisle recover
of the Deft. Malcolm McCall in his capacity as Sheriff of Lake
County, Florida, the sum of SEVENTEEN THOUSAND FIVE
HUNDRED and no/100 DOLLARS ($17,500.00) with interest
thereon at the legal rate as provided by law and his costs of ac-
It is further ordered that the Pitf. Joseph E. Davenport
recover of the Deft. Malcolm McCall, in capacity as Sheriff of
Lake County, Florida the sum of TWENTY THOUSAND
AND no/100 DOLLARS ($20,000.00) with interest thereon at
the legal rate as provided by law and his costs of action............
It is further ordered that the Plaintiff FRANCIS J.
URGOREK recover of the Deft. Malcolm McCall in his capaci-
ty as Sheriff of Lake County, Florida the sum of SEVENTEEN
THOUSAND FIVE HUNDRED AND no/100 DOLLARS
($17,500.00) with interest thereon at the legal rate as provided
Oy iney ad Dis CONES OF GOEIOR.. 00.00. cccccccccvccccccascnccvecedsesteneres
Dated September 9, 1978
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TANNER v. McCALL
Appeals from the United States District Court for the Middle
District of Florida.
Before FAY, KRAVITCH and RANDALL, Circuit Judges.
FAY, Circuit Judge:
Five former deputies and a former secretary of the Lake
County Sheriff’s Department sued Sheriff Malcolm McCall for
violating their rights under the first and fourteenth amendments
and 42 U.S.C. § 1983 (1976). Plaintiffs alleged that patronage
considerations unlawfully motivated McCall’s decision not to
reappoint them. A jury returned a verdict against plaintiff Bob-
by F. Tanner, former chief deputy, and in favor of the other
plaintiffs. The trial court amended the judgment on the verdict,
restricting its reach to McCall in his official capacity only. The
court also awarded attorneys’ fees under 42 U.S.C. § 1988
(1976), denied the victorious plaintiffs’ motion for reinstate-
ment with back and front pay, and partially granted plaintiffs’
requests for costs. Sheriff McCall appeals from the trial court’s
refusal to grant a directed verdict against all plaintiffs, from its
damage award against a public entity, and from the fee award.
Plaintiff Tanner appeals the trial court’s denial of his motion
for new trial, which alleged improper evidentiary admissions.
The other plaintiffs cross-appeal the denial of reinstatement,
back and front pay, and certain costs. They also contend that
the court improperly amended the judgment to exclude
McCall’s individual liability. We reverse the judgments against
McCall.'
I, FACTS
Willis McCall, the defendant’s father, was sheriff of Lake
County, Florida from 1945 to 1972. Malcolm McCall worked in
the department for much of that time and was his father’s chief
deputy from 1966 to 1972. In 1972, Guy Bliss, a Republican,
defeated Willis McCall, a Democrat, in the election for sheriff.
1. Our reversal of the judgments against McCall renders unnecessary the
resolution of the other issues.
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TANNER v. McCALL
[1-3] When Sheriff Bliss was elected, he did not reappoint
ten of the fifteen deputies, including Malcolm McCall. Under
Florida law, a sheriff does not ‘‘employ’’ deputies, but ‘‘ap-
points’’ them. Murphy v. Mack, 358 So.2d 822, 823-24 (Fla.
1978). The appointment ends when the sheriff’s power ends. By
statute,
{[s}heriffs may appoint deputies to act under them who
shall have the same power as the sheriff appointing them,
and for the neglect and default of whom in the execution
of their office the sheriff shall be responsible.
Fla.Stat.Ann. § 30.07 (West 1974). A deputy is the sheriff’s
alter ego and has all the sheriff’s sovereign powers, except the
power to appoint other deputies. A deputy’s actions are those of
the sheriff and the sheriff is civilly liable for those actions:
It is essential to law enforcement in the various counties of
the State that the people shall be able to place responsibili-
ty upon a particular individual, the sheriff. He and he
alone appoints his deputies and is responsible for them. It
was never contemplated that the sheriffs of the state must
perform the powers and duties vested in them through
deputies or assistants selected by someone else.
Blackburn v. Brorein, 70 So.2d 293, 298 (Fla. 1954). Because of
this responsibility, Florida law has reserved to the sheriff ab-
solute control over selection and retention of deputies. Murphy
v. Mack, 358 So.2d at 825; Blackburn v. Brorein, 70 So.2d at
298.
In 1976, Malcolm McCall, running as a Democrat, defeated
Bliss’s bid for reelection. By this time the department’s staff had
grown to almost eighty, including between thirty and thirty-five
deputies. McCall received approximately three hundred applica-
tions for these positions. Before he took office, McCall inter-
viewed almost all the Bliss employees as applicants for employ-
ment. Generally, the interviews were to acquaint McCall with
the employees, their jobs, their attitudes about their jobs, and
their feelings about working for McCall. McCall assumed that
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TANNER v. McCALL
all employees had supported Sheriff Bliss during his bid for
reelection; McCall claims he would have thought less of them if
they had not. McCall did not ask interviewees which candidate
they had supported or their political party affiliation; he actual-
ly discouraged employees from volunteering that information.
McCall did not tell any of the plaintiffs that he was not reap-
pointing them for patronage reasons.
McCall decided to reappoint all but nineteen or twenty of the
Bliss employees. Three other Bliss employees resigned.’ Fifty-
five of the Bliss employees whom McCall reappointed were still
employed in the department when the case was tried.
Plaintiff Carol Campbell was the only office worker McCall
did not reappoint. McCall eliminated her position, secretary to
the chief deputy. The chief deputy’s work is now handled by the
sheriff’s secretary. Plaintiff Ugorek’s position of senior
sergeant supervisor also was eliminated. Plaintiff Davenport,
the jailer, was replaced by Robert Gnann, who had worked in
the pre-1972 department. Plaintiff Tanner, the chief deputy,
was replaced by Donald Scism, a Republican who had worked
for Lake County from 1962-1972 and for other police and
sheriff’s departments before returning to Lake County in
February of 1977. Plaintiff Carlisle was a deputy working as a
plainclothes vice investigator. McCall now has six investigators
whose scope of duties is not as departmentalized as it was under
Bliss. At least three newly appointed deputies work as in-
A
2. The job titles used by Bliss and McCall are not the same. The employees
not remaining with McCall included the chief deputy, the detention super-
visor, the matron, a radio operator, a process server, a secretary, civil
deputies, deputies, investigators, senior sergeant supervisor, and sergeants.
Record at 124. The record does not reflect how many of these people held ar-
rest powers. Deputy Oliver and Sergeant Gooden resigned. Civil Deputy
Underwood told McCall during his interview that if McCall was starting a
juvenile division he would like to stay, but that otherwise he would resign.
Transcript at 384-85.
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TANNER v. McCALL
vestigators; they all had worked for Lake County under
McCall’s father.’ One of them, who had worked with Willis Mc-
Call from 1950 to 1972, contributed $25.00 to Malcohr
McCall’s campaign. Plaintiff Knuth was a patrol or road depu-
ty. Eight new road deputies were hired,‘ none of whom worked
for the department before 1972 or contributed to McCall’s
campaign.
Because the department’s size fluctuated, pinpointing the
number of new appointees at any given time is difficult. The
department had less than eighty positions in January of 1977. It
had about eight-five when this case was tried. McCall now has
forty officers with arrest powers. He began with between thirty
and thirty-five. Since his election, McCall has appointed ap-
proximately twenty new officers with arrest powers. McCall did
not appoint all of them immediately upon his assumption of of-
fice in January, and the record does not reflect which of them
filled the five to ten newly created slots. Six of these twenty new-
ly appointed officers had worked with McCall before 1972.’
Four other people were appointed who had worked for the
department in various capacities before 1972. Of those ten,
four, including one part-time employee, contributed a total of
$135.00 to McCall’s $18,000 campaign. Another newly ap-
pointed deputy, who had not previously been with the depart-
ment, contributed $2.50.
3. Two of these investigators, Deputy Flavell and Deputy Secrease, were first
hired by Willis McCall but had been retained by Sheriff Bliss um. 1973. See
also note 19 infra.
4. According to testimony in one of the plaintiffs’ proffers, some of the road
deputies were hired well after McCall’s oath of office on January 3, 1977. One
was hired in March, one in April, two in July, and one in December of 1977.
During his testimony, McCall listed eight new road deputies. Transcript at
117. During the proffer, other employees were mentioned, but it is not clear
whether they also were road deputies. This proffered testimony did not go to
the jury.
5. This figure includes Flavell and Secrease. See note 3 supre.
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TANNER v. McCALL
Il. PRETRIAL PROCEEDINGS
Seven days after McCall took office, plaintiffs filed a com-
plaint alleging that McCall wrongfully terminated their employ-
ment, that he deprived them of a property interest in their jobs,
that he had stigmatized them, damaging their good names and
reputations, and that he infringed their first amendment rights
to support Sheriff Bliss by terminating or failing to reappoint
them because of that support. Plaintiffs moved for a
preliminary injunction ordering reinstatement. The court issued
a combined order denying the injunction and granting McCall’s
motion for summary judgment on all but the political patronage
claim.‘ Tanner v. McCall, 441 F.Supp. 503 (M.D.Fla.1977). As
to the patronage claim, the court stated that the plaintiffs had
neither presented a prima facie case of politically discriminatory
animus nor shown that infringement of protected freedoms was
*‘the primary and dominant cause’’ of their failure to be reap-
pointed. Jd. at 513, 514.’ Nevertheless, the court held that a
genuine issue of material fact existed on whether plaintiffs were
not reappointed because of their political views. Id. at 514-15.
Summary judgment was therefore denied and the case went to
trial on the political discrimination—patronage claim.
6. Plaintiffs do not appeal the district court’s finding that the plaintiffs had
no property interest in their jobs, that they had not been stigmatized, that they
had not been denied due process, and that they were not entitled to a
ately tebentelond.
7. The district court stated:
In the present case, plaintiffs have the burden to show, both ultimately
on the merits, and prima facie on their preliminary injunction motion,
that they were not continued in their jobs because of political
discrimination. . However, plaintiffs have not met their burden.
Defendant has indicated that he did not know or consider the political
allegiances of plaintiffs or any other employees of the sheriff’s depart-
ment when he decided to retain some and replace others. Deposition at
41, 55, 63. Although plaintiffs supported the candidacy of the incum-
bent sheriff, so did many other employees, who were retained by defen-
dant. Hence, the fact of plaintiffs’ uniform political support alone can-
not show any infringement of their First Amendment freedoms by
defendant. Far from showing anything additional, plaintiffs have in-
dicated that defendant did not inquire, and discouraged voluntary
statements, about their political stances in the preceding election. The
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TANNER v. McCALL
Ill. PARTIES’ POSITIONS
Plaintiffs claim they were not reappointed either because of
their political support for Sheriff Bliss or because McCall
wanted room for appointment of his political supporters. Mc-
Call replies that he merely used his best judgment to select from
the three hundred applicants those with whom he felt he could
work, and those who he felt could do the best job for Lake
County.
On appeal, McCall argues that in this situation even a
politically motivated decision would not amount to an imper-
missible abridgement of plaintiffs’ first amendment freedoms.
He also asserts that plaintiffs failed to make a prima facie show-
ing that his failure to reappoint them was solely because of their
exercise of first amendment freedoms. As to some of the plain-
tiffs, McCall also argues that he proved independent reasons for
his decision not to reappoint them. McCall therefore claims that
the court should have granted his motion for directed verdict.
Court concludes that plaintiffs have not met their burden to show a
prima facie case of politically discriminatory animus by defendant.
Furthermore, even if plaintiffs had demonstrated a prima facie case
of polictical discrimination in defendant’s decision not to continue their
employment, they would need to show more in order to prevail. Plain-
tiffs must show that any impermissible infringement of protected First
Amendment freedoms (such as political beliefs, expression, and associa-
tion) was the primary and dominant cause of their terminations. In
short, plaintiffs must show that, even if defendant wished to curtail
their protected First Amendment freedoms, apart from that wrongful
reason, there were no other good reasons that independently justified
their discharges.
Plaintiffs in the present case have not demonstrated anything near a
likelihood (1) that they were replaced for politically discriminatory
reasons, or (2) that if they had been, there were no other, independent
and legitimate reasons to justify replacing them. Defendant, meanwhile,
maintains that his decision to replace plaintiffs was based on reasons
that, consistent with his campaign promise, would achieve a better
operating sheriff’s departrnent. Whether those reasons are sound is not
within the province of this Court to determine, so long as they are
arguably legitimate and not a mere pretext for violating basic constitu-
tional freedoms. Plaintiffs have not established a prima facie case of
such pretense that would entitle them to a preliminary injunction.
441 F. Supp. at 513-14 (citations omitted).
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TANNER v. McCALL
IV. POLITICAL PATRONAGE
A. Constitutional Guidelines
[4.5] A discussion of the applicable precedent is necessary
to set in the proper context a review of this case. Government
employers can neither coerce employees to compromise their
beliefs nor place unconstitutional conditions upon public
employment. Perry v. Sindermann, 408 U.S. 593, 597, 92S. Ct.
2694, 2697, 33 L.Ed.2d 570 (1972); Pickering v. Board of
Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d
811 (1968); Keyishian v. Board of Regents, 385 U.S. 589,
605-06, 87 S.Ct. 675, 684-685, 17 L.Ed.2d 629 (1967). The
employee does not, however, receive blanket first amendment
protection regardless of the governmental interest. A balance is
struck between the employee’s first amendment interest and the
government’s interest ‘‘in promoting the efficiency of the public
services it performs through its employees.’’ Pickering v. Board
of Education, 391 U.S. at 568, 88 S.Ct. at 1735. Not only must
the means chosen be rationally related to furthering a para-
mount or vital governmental interest, but the means must also
be closely drawn to avoid unnecessary abridgement of first
amendment freedoms. Buckley v. Valeo, 424 U.S: 1, 64-65, 96
S.Ct. 612, 656, 46 L.Ed.2d 659 (1976); Pickering v. Board of
Education, 391 U.S. at 568, 88 S.Ct. at 1734.
In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d
547 (1976), the Supreme Court applied this first amendment
framework to partisan dismissals of county employees. The
sheriff in E/rod had discharged or threatened discharge of the
Process Division’s chief deputy, an office employee, a process
server, and a bailiff-security guard. Jd. at 351, 96 S.Ct. at 2678.
The Court held that the Constitution proscribes discharge of
noncivil service employees solely because they did not support
and were not members of the political party of the newly-elected
sheriff, or solely because they had failed to obtain the sponsor-
ship of the leaders of that party. In his plurality opinion, Justice
Brennan noted that patronage dismissals are but one form of
patronage practice. ‘“The practice also includes placing loyal
supporters in government jobs that may or may not have been
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TANNER v. McCALL
made available by political discharges.’’ Jd. at 353, 96 S.Ct. at
2679.* Justice Brennan stated the test for balancing private and
governmental interests:
{I]f conditioning the retention of public employment on
the employee’s support of the in-party is to survive con-
stitutional challenge, it must further some vital govern-
ment end by a means that is least restrictive of freedom of
belief and association in achieving that end, and the
benefit gained must outweigh the loss of constitutionally
protected rights.
Id. at 363, 96 S.Ct. at 2685 (footnote omitted). The plurality re-
jected the position that interests in efficiency and effectiveness
were furthered by wholesale replacement of employees
whenever a new political party rises to power. Jd. at 364-67, 96
S.Ct. at 2685-2686. Found to be of greater weight were the
employer’s interests in political loyalty. The plurality decided,
however, that loyalty too was inadequate to justify wholesale
patronage dismissals. ‘‘Limiting patronage dismissals to
policymaking positions is sufficient to achieve this governmen-
tal end.’’ Jd. at 367-68, 372-73, 96 S.Ct. at 2687. Justices
Stewart and Blackmun concurred, stating that a ‘‘non-
policymaking, nonconfidential government employee’’ cannot
be discharged solely because of political beliefs.
[6] Recently in Branti v. Finkel, U.S. , 100
S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Supreme Court reaf-
firmed Elrod’s principle but modified its exception for
policymaking employees. In Branti, the Court found constitu-
tional deficiencies in the planned termination of Assistant
8. We note that while the Court included the placing of loyal supporters in
its definition of patronage practice, it has not been confronted with a situation
in which loyal supporters of the elected candidate were preferred over less
loyal supporters, neutral applicants, or the supporters of the opposition. The
Supreme Court’s patronage cases to date have concerned employment deci-
sions based on allegiance to a political party, not to a political candidate.
Those cases involved situations in which employment decisions were in effect
made by a political caucus, not the elected candidate.
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TANNER v. McCALL
County Public Defenders solely because they had not been
recommended or sponsored by the in-party caucus.’ In rejecting
the argument that assistants are policymaking and confidential
employees, the court recast the exception for when an employer
could justifiably dismiss employees despite their exercise of their
first amendment freedom to choose their political beliefs:
{Ijf an employee’s private political beliefs would interfere
with the discharge of his public duties, his First Amend-
ment righis may be required to yield to the State’s vital in-
terest in maintaining governmental effectiveness and
efficiency.
* * * * * *
In sum, the ultimate inquiry is not whether the label
‘*‘policy maker’’ or ‘‘confidential’’ fits a particular posi-
tion; rather, the question is whether the hiring authority
can demonstrate that party affiliation is an appropriate re-
quirement for the effective performance of the public of-
fice involved.
U.S. at
, 100 S.Ct. at 1294. The Court rejected a
blanket exception for policymaking employees. The employer
must show that the required political support or affiliation is
relevant or essential to the job. /d.
B. Order of Review
Review of this patronage case can be divided into three steps.
The logical first step would be to determine, assuming that
9. Six of nine assistants were scheduled for termination. ‘‘With one possible
exception, the nine who were to be appointed or retained were all Democrats
and were all selected by Democratic legislators or Democratic town chairmen
on a basis that had been determined by the Democratic caucus.”’ U.S.
at 100 S.Ct. at 1290. The exception was Manuel Sanchez, who was re-
tained because he speaks Spanish, Finkel v. Branti, 457 F.Supp. 1284, 1287
n.8 (S.D.N.Y.1978). The plaintiffs were Republicans although one had
changed his party registration to Democrat in 1977 to further his chances of
being reappointed. U.S. at & n.4, 100 S.Ct. at 1290.
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TANNER v. McCALL
plaintiffs’ allegations are true, whether the defendant’s conduct
was an impermissible infringement of first amendment
freedoms. Precepts of judicial decision making, however, re-
quire consideration first of the nonconstitutional grounds raised
by appellant. See New York Transit Authority v. Beazer, 440
U.S. 568, 582-83 n.22, 99 S.Ct. 1355, 1363-1364, 59 L.Ed.2d
587 (1979); Rescue Army v. Municipal Court, 331 U.S. 549,
568-69, 67 S.Ct. 1409, 1419, 91 L.Ed. 1666 (1947) quoting
Ashwander v. TVA, 297 U.S. 288, 346-348, 56 S.Ct. 466,
482-483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). We will
therefore begin by assuming that plaintiffs’ allegations would
support.a finding of a first amendment violation, and turn to
the second question: whether the plaintiffs have met their
burden of showing a constitutional deprivation. The final in-
quiry is whether defendant rebutted this showing with sufficient
evidence that the same employment decision would have been
reached regardless of the constitutionally protected conduct.
C. Sufficiency of the Evidence
Side-stepping the balancing of piaintiffs’ first amendment in-
terests against McCall’s interests in the efficiency and loyalty of
his deputies and employees, we review the plaintiffs’ proof of
political patronage.
Unlike Elrod and Branti, this case involves neither the
wholesale discharge of out-party employees nor the dismissal of
those not sponsored by an in-party caucus. Political party af-
filiation has only tangential revelance.'® McCall is a Democrat.
Bliss is a Republican. Nevertheless, McCall did not know or ask
the applicants’ party affiliation. One plaintiff is a registered
Democrat. Transcript at 379. Another is now a Republican, but
10. Even if party affiliation were more relevant, plaintiffs would not
automatically succeed with their claims. The Supreme Court has expressly
reserved judgment on whether an employee with broad public responsibilities
can be discharged because of party affiliation or loyalty. Branti v. Finkel,
nite, a a n.13, 100 S.Ct. at 1294. McCall has continuously
argued that Florida deputies are policymaking employees with broad respon-
sibilities. The sherift’s utmost confidence in the loyalty and efficiency of the
deputies is essential and relevant under the Florida scheme. McCall therefore
argues that his conduct was not constitutionally prohibited.
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TANNER v. McCALL
is listed as a Democrat in his employment file. Jd. at 319. The
other plaintiffs are Republicans. Jd. at 392, 445, 479. Scism,
however, McCall’s newly appointed chief deputy, is also a
Republican. Jd. at 267. Little or no other evidence was supplied
on the party affiliation of the other retained, newly appointed,
and not reappointed employees.'' Party affiliation does not dif-
ferentiate the plaintiffs from the new appointees, and plaintiffs
do not argue that they were not reappointed because of their af-
filiation. Their position is that they were not appointed because
of their support for Bliss or because McCall wanted to hire his
political supporters. Political party affiliation is used only as an
inaccurate litmus for whether an employee might be a Bliss or
McCall supporter. Plaintiffs’ contention can only be that reten-
tion or appointment coincided with support and loyalty for a
man, not for a political party.
Even in this regard, the facts do not support plaintiffs’ posi-—
tion. Unlike the employers in Elrod and Branti, McCall did not
effect a wholesale replacement of employees. He failed to reap-
point only between twenty and thirty percent of the employees
appointed by Bliss or about twenty of the eighty employees. He
did not fire all Bliss supporters. He did not appoint only ardent
McCall supporters. He did not appoint only Democrats.'?
Although all the plaintiffs were Bliss supporters, McCall as-
sumed all employees had supported Bliss. McCall actually knew
that some of the employees he was reappointing had actively
supported Bliss. No evidence was admitted to show that the
plaintiffs were more active than most Bliss supporters, or to
show that the replacement appointees were more active than
most McCall supporters.'? Only one of the appointees who
11. The five retained employees who testified, Bradley, Swingle, Fogle,
Johnson and Lutrell, were not asked their party affiliation. Of the four newly
appointed deputies who testified, Gnann, Livingston, and Sewell are
Democrats and Scism is Republican. No evidence was offered on the party af-
filiation of the other appointees. Except for that on plaintiffs, no evidence was
offered on the affiliation of the people who were not reappointed. Party af-
filiation is a matter of public record in Florida.
12. See note 16 supra on the use and weight of statistics in this case.
13. Donald Scism, the new chief deputy, was in Seminole County and did
not campaign at all for McCall.
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TANNER v. McCALL
might have been a replacement for a plaintiff contributed
money to McCall’s campaign.
Plaintiffs supplied no direct statements by McCall that
political patronage motivated his appointments. Statements
which might be considered most suggestive of such a motive
were not directed to plaintiffs, and do not support an inference
of an overall pattern of patronage motive.'*
Plaintiffs argue that McCall’s statement to Tanner that he
would interview all the employees and that ‘‘he had his own
people he wanted to bring in’’ supports their claim that McCall
was appointing his political supporters.'* McCall stated at the
14. Deputy Underwood had been the Republican candidate for tax collector
in the 1976 election. After Underwood congratulated McCall, McCall said it
looked like they were ‘‘on the opposite sides this time.’’ Transcript at 385. As
they went over Underwood’s file, Underwood stated he would not be in-
terested in staying with the department unless McCall had plans for a juvenile
division. According to Underwood, the conversation continued as follows:
And he [McCall] said that he was trying his best to get the best
qualified deputies and all, and did I understand.
And I said, ‘‘Yes.’’ I said, ‘*To the victor goes the spoils.”’
And he said, ‘‘Yes.’’ He said, you know, ‘‘I thought I was going to
enjoy this very much.’’ But he said, ‘‘Some of the decisions I have to
make are very hard decisions. And I have had to give a lot of thought to
.*
And I said, ‘"Malcolm, you know whatever you do, you have to
answer to the people for four years.’’
And he said, ‘*Yes.’’
Id.
Witness Randolph Ward was a Bliss employee who had worked with McCall
under the interim Sheriff in 1972. The es is Ward’s testimony on Mc-
Call’s statements to him:
And he [McCall] said, ‘‘Randolph, I have been knowing you a long
time.’’ . . . He said, ‘‘We never had any hard words or anything. We
always got along fine.’’ He said, ‘‘But I won’t be able to use you in my
administration.’’ He said, ‘‘You have been a little too active.’’
Id. at 259. Ward testified that he could not say what McCall meant by ‘‘too ac-
tive.’’ Id. at 260. No testimony was admitted on Ward’s political activities
during the 1976 campaign.
15. Campbell may have heard McCall make a similar statement, although
after confrontation with her deposition, she said she was not sure whether he
said he wanted his own ‘‘secretary’’ or his own ‘‘people.’’ Transcript at 479,
487. In his deposition, McCall said he had people he wanted to place in a
number of positions. /d. at 80-81.
A-15
-%
’%
TANNER v. McCALL
same time, however, that he did not know who or how many
new people he would appoint, although it could be as many as
ten or fifteen. Transcript at 406. In context, the statement does
not support plaintiffs’ position, especially since one would ex-
pect McCall to know who it was he planned to appoint if
political patronage were a factor. The statement is merely a
variation of McCall’s continued assertion that he was selecting
from the three hundred applicants those who could work best
with him to do the best job for Lake County. Obviously all the
applicants could not be appointed since less than eighty posi-
tions were available.
The other circumstantial proof urged by plaintiffs does not
support an inference of patronage. McCall made the appoint- ~
ments after the election, but under Florida law all prior appoint-
ments had ended when Bliss left office. Five people who might
have been replacements for three plaintiffs had worked with
McCall before, but familiarity with an applicant’s abilities is not
logically equivalent to political patronage.
[7-11] The evidence is insufficient to support an inference
that McCall was motivated by an intent to discriminate against
plaintiffs because of their support for Bliss or by a desire to
make room for McCall’s own political supporters. Part of the
plaintiffs’ burden is proving that the defendant’s intent to
discriminate or violate the plaintiffs’ constitutional rights was a
substantial motivating factor in the employment decision. M1.
Healthy City Board of Education v. Doyle, 429 U.S. 274, 287,
97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Washington v. Davis,
426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). When
neutral decisional criteria are utilized by an employer, a plain-
tiff’s case is more difficult to prove. Circumstantial evidence
can be used to supply inferences of an intent to infringe con-
stitutional rights. Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252, 264-68, 97 S.Ct.
555, 562-565, 50 L.Ed.2d 450 (1977). The strength of the in-
ference, however, depends upon the strength of the cir-
cumstances. Wilson v. Thompson, 593 F.2d 1375, 1387 (Sth Cir.
1979). In some cases, the inferences fail to ripen into proof. See
Personnel Administrators’ of Massachusetts v. Feeney, 442
A-16
|
TANNER v. McCALL
U.S. 256, 279 n.25, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 ©
(1979). In this case no clear statistical pattern of discrimination
exists.'*° The sequence of events, McCall’s appointment of
employees after an election, was necessitated by the Florida
statutory scheme. No procedural or substantive departures were
shown. Contemporaneous statements by McCall do not support
an inference of political animus. See Village of Arlington
Heights v. Metropolitan Housing Corp., 429 U.S. at 264-68, 97
S.Ct. at 562-565.'’ The aim in any section 1983 case grounded
on a constitutional violation is to ascertain the defendant’s
motive, even when objective manifestations of intent are all that
16. Whether use of statistical evidence is appropriate in establishing a prima
facie case of disparate treatment under Title VII is not altogether clear. Com-
pare Kinsey v. First Regional Securities, Inc., 557 F.2d 830 (D.C.Cir. 1977)
with Harper v. Trans World Airlines, Inc., 525 F.2d 409 (8th cir. 1975). See
generally Comment, The Role of Statistical Evidence in Establishing a Prima
Facie Case of Employment Discrimination: Davis v. Califano, 14 Ga.L.Rev.
615 (1980). Nevertheless, employers are allowed to introduce statistics as some
proof of lack of discriminatory motive in Title VII disparate treatment cases
even though such proof is insufficient to demonstrate conclusively that the ac-
tions were not discriminatorily motivated. Furnco Construction Corp. v.
Waters, 438 U.S. 567, 579-80, 98 S.Ct. 2943, 2950-2951, 57 L.Ed.2d 957
(1978). Title VII plaintiffs may also use statistics reflecting a general pattern of
discrimination as some proof that the employer’s stated reason for the
employment decision is only a pretext. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 804-05, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973); but see the
caveat, id. at 805 n.19, 93 S.Ct. at 1825 (such generalized determinations may
not be controlling as to an individualized hiring decision). Since intent is an
element of a prima facie case of disparate treatment based on constitutional
rights, statistics reflecting a presence or absence of discriminatory motive can
be considered, although as in such Title VII cases, statistics will not be con-
clusive proof.
17. Plaintiffs attempted to admit evidence on the tradition of political
patronage in the Sherrif’s Department. Arlington Heights lists past
discrimination as a factor relevant to intent. The trial court correctly con-
cluded, however, that actions of past sheriffs were not relevant to Malcolm
McCall’s motives and would be highly prejudicial. See City of Mobile v.
Bolden, U.S. . , 100 S.Ct. 1490, 1503, 64 L.Ed.2d 47
(1980) (past discrimination is not an original sin that forever taints official ac-
tion).
A-17
7%
°%
TANNER v. McCALL
is available. See Personnel Administrators of Massachusetts v.
Feeney, 442 U.S. at 274-80, 99 S.Ct. at 2293-2296; see also City
of Mobil v. Bolden, ____._ U.S. ; , 100
S.Ct. 1490, 1501-1503, 64 L.Ed.2d 47 (1980). In this case, the
objective manifestations do not supply inferences that rise to
the level of proof of a subjective intent of political animus.
[12-14] A final point on the sufficiency of the evidence con-
cerns the trial court’s exclusion of some evidence on the training
and experience of some appointees. Under Title VII, evidence
of qualifications is part of a prima facie case of disparate treat-
ment. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,
93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The Supreme Court
held in McDonnell Douglas that a Title VII plaintiff meets his
prima facie burden by proving that he was a qualified applicant
who was a member of a racial minority group and who was re-
jected even though the position remained open and the
employer continued to consider applicants with similar
qualifications. 411 U.S. at 802, 93 S.Ct. at 1824. Direct proof of
discrimination is not required, but the elimination of the two
most common legitimate reasons for rejection—the plaintiff’s
lack of qualifications and the employers’ lack of posi-
tions—creates an inference of discrimination sufficient to shift
the burden of proof to the employer. Teamsters v. United
States, 431 U.S. 324, 358 n.44, 97 S.Ct. 1843, 1866, 52 L.Ed.2d
396 (1977). If the employer articulates a legitimate, non-
discriminatory reason for the decision, the plaintiff can in-
troduce evidence that the employer’s justification is merely a
pretext for discrimination. Furnco Construction Corp. v.
Waters, 438 U.S. 567, 578-79, 98 S.Ct. 2943, 2950, 57 L.Ed.2d
957 (1978).
[15-17] Prima facie proof of a constitutional violation must
include evidence of impermissible motive. Village of Arlington
Heights v. Metropolitan Housing Development Corp., 429 U.S.
252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); Washington
v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1970);
Whiting v. Jackson State University, 616 F.2d 116, 122 (Sth Cir.
A-18
TANNER v. McCALL
1980). Although Arlington Heights and Davis were equal pro-
tection cases, the same burden of proof has been imposed in
first amendment cases arising under the due process clause of
the fourteenth amendment. Mt. Healthy City Board of Educa-
tion v. Doyle 429 U.S. at 287 n.2, 97 S.Ct. at 576 (citing Arling-
ton Heights). A relevant question here is whether proof of the
McDonnell Douglas factors is sufficient to shift the burden to
the defendant in a case grounded on the Constitution. Just as
the Court in Davis found disparate impact alone to be insuffi-
cient to prove discriminatory purpose in a constitutional case,
so the mere elimination of two common reasons for rejection
does not support an inference of discriminatory intent sufficient
to shift the burden to a defendant charged with a constitutional
violation. As the Court stated in Furnco regarding Title VII, ‘‘a
prima facie showing under McDonnell Douglas {ix not
equivalent to] an ultimate finding of fact as to discriminatory
refusal to hire.’’ 438 U.S. at 576, 98 S.Ct. at 2949. Once a case is
presented under Title VII using the standards set out in McDon-
nell Douglas or Griggs v. Duke Power Co., 401 U.S. 424, 91
S.Ct. 849, 28 L.Ed.2d 158 (1971), plaintiff can delay producing
other proof of intent until the employer proves job-relatedness,
business necessity, or a legitimate nondiscriminatory reason for
the action. Under the Constitution, however, that proof of in-
tent is part of plaintiff’s prima facie burden. Therefore,
although proof of the appointees’ training and experience was
relevant, its exclusion was not reversible error in this case.
{18] Furthermore, review of the admitted and proffered
evidence on plaintiffs’ replacements and the proffer on other
appointees convinces us that their training and experience do
not support an inference of patronage. Campbell and Ugorek
were not replaced.'* Gnann, who replaced plaintiff Davenport,
had experience as a patrol deputy, investigator, bank guard, and
firefighter. He had prior on-the-job experience in corrections.
Transcript at 88, 285. According to plaintiffs’ proffer, Scism,
18. See section IV-D infra.
A-19
7%
TANNER v. McCALL
who replaced Tanner, was a college graduate with over ten years
experience as a deputy for Lake County. Between 1972 and 1977
he worked for the Seminole County Sheriff’s Department.
Evidence and proffered testimony was supplied on the qualifica-
tions of only three of the investigators who might have replaced
Carlisle.'* Flavell had been a deputy investigating crime in Lake
County for an unspecified period before 1972 and for some time
under Sheriff Bliss. He was trained at the Orlando Police
Academy and had prior experience with the Sanford Police
Department. Secrease began as a deputy in 1966. From 1968
with Willis McCall to 1973 with Sheriff Bliss he was a uniformed
investigator for Lake County. He had also been an officer with
the Groveland Police Department. Sewell had been a deputy
with Lake County for twenty-two years. From 1972 to 1977, he
was a private investigator. Proffered evidence on the.eight road
deputies who might have replaced Knuth shows that they all
were certified officers with prior training and law enforcement
experience. Transcript at 117, 125-32.7° |
McCall was not hiring inexperienced political hacks. Many of
the proffers included only evidence to support a meeting of
minimum state requirements for certified law enforcement of-
ficers. Transcript at 131. Other experience and training qualify-
ing the replacements for the positions was not included in the
record. Furthermore, training and experience were not
necessarily the only qualifications for these positions. McCall
continually claimed he was searching for efficient employees
who could work well with him. Personalities did play a role in
his decisions and he naturally knew the working personalities of
19. These three may be the only new appointees among the six investigators.
Joseficzyk was a Bliss employee. Whether DePetrillo and Worley were new ap-
pointees or Bliss employees was not stated. Nevertheless, since all employees
were treated as applicants, evidence on the other three investigators would
have been relevant.
20. Inexplicably, no evidence was proffered on John D. Hart, who was listed
as one of the road deputies. As stated in note 4, testimony was proffered on
other appointees who were not listed as road deputies. Their qualifications
were also quite good. Only one of them began his law enforcement career as a
Lake County deputy in 1977; he is a certified officer.
A-20
TANNER v. McCALL
people with whom he had previously worked. Plaintiffs claim
McCall was looking for loyalty, but even that may not have
been impermissible, especially under the Florida system of strict
liability for the acts of deputies. The Supreme Court has on oc-
casion recognized that efficiency and loyalty be valid
governmental interests. CSC v. Nat’! Ass’n of Letter Carriers,
413 U.S. 548, 555, 564, 93 S.Ct. 2880, 2885, 2889, 37 L.Ed2d
796 (1973); Pickering v. Board of Education, 391 U.S. 563, 568,
88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968); United Public
Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754
(1947); see Elrod v. Burns, 427 U.S. at 364-68, 96 S.Ct. at
2685-2687. Because we hold that plaintiffs did not supply suffi-
cient evidence, we do not pass on whether McCall’s interests in
loyalty and efficiency would in this case outweigh the plaintiffs’
interests.
[19] Plaintiffs did not meet their burden of proving that
political discrimination was a substantial or motivating factor in ,
McCall’s employment decisions.
D. Causation
{20} For two plaintiffs, further reason exists for reversing
the judgment.*' McCall submitted evidence that he eliminated
21. Ina pretrial opinion, the district court indicated that the burden of prov-
ing no other valid reason for discharge was on the plaintiffs, not McCall. Tan-
ner v. McCall, 441 F.Supp. 503, 513-14 (M.D.Fla.1977). See note 7 supra.
That McCall had relied on this pretrial opinion became apparent after the
close of the evidence. Transcript at 569. McCall might have offered causation
evidence on all plaintiffs, as he did at the post-trial hearing on reinstatement,
were it not for that ruling. On cross-examination, Tanner and Davenport were
asked about interview questions McCall had asked them on incidents which
might have supplied independent reasons for failure to rehire them. /d. at
432-35, 458-60. Carlisle testified on direc. that McCall said he had been told
bad things about Carlisle by the Leesburg Police Chief and the Florida
Highway Patrol ‘‘[a}nd as a result he wished [Carlisle] the very best and hoped
[he] could get a job in the neighboring county . . . .”” Jd. at 362. McCall never
testified, however, that these incidents were motivating factors in his deci-
sions. See id. at 77-78 (McCall did not want to “‘hang any laundry out on the
line for these gentlemen or this lady’’). Despite the pretrial order, Mt. Healthy
clearly places on the defendant the burden of proving independent reasons for
than Campbell aid Ugorek.
A-21
>>
TANNER v. McCALL
the positions held by plaintiffs Campbell and Ugorek. Plaintiffs
did not rebut this proof with competent evidence. If the first
amendment motive is not the ‘‘but for’’ reason for the refusal to
reappoint plaintiffs, their section 1983 action fails. Givhan v.
Western Line Consolidated School District, 439 U.S. 410,
416-17, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979); Mt. Healthy
City Board of Education v. Doyle, 429 U.S. 274, 285-87, 97
S.Ct. 568, 575-576, 50 L.Ed.2d 471 (1977).
As to Campbell, the jury specifically asked whether the
number of secretaries was reduced when McCall took office.
Transcript at 651. The court instructed the jury to use its best
recollection of the evidence to answer their question. Jd. at
662-63. A review of the transcript uncovers no competent
evidence that the position remained open. Although Campbell
disputed it, both Sheriff Bliss and Sheriff McCall testified that
Campbell had been the chief deputy’s secretary. Jd. at 144,
171-172, 475-76, 488. The uncontradicted testimony was that
McCall eliminated this position; the chief deputy’s work is now
done by the sheriff’s secretary. Jd. at 112-13, 144. In addition,
the office staff was reduced from thirteen employees to twelve.
Campbell was the only one of thirteen office employees not
reappointed. The current office manager testified that she
supervises the eleven other office employees. Jd. at 173. The
evidence was insufficient to support a jury verdict for Camp-
bell.??
22. Campbell relied on the following testimony which she gave on cross-
examination, to establish that the number of secretaries had not been reduced:
Q. Do you know whether anybody has been employed in the same
position that you held prior to January of ’77?
A. There have been, as I understand it, three women hired in the of-
fice. I don’t know exactly what their jobs are.
Transcript at 488. Not only does this testimony fail to prove that the total
number of office workers was thirteen or more, but it also does not indicate
the source of the information, the jobs the new employees took, or the date
when these employees were hired. This testimony was of insufficient probative
value to raise a jury question. See Robertson v. Emory University Hospital,
611 F.2d 604, 608 (Sth Cir. 1980); Boing Company v. Shipman, 411 F.2d 365,
374 (Sth Cir. 1969) (en banc).
A-22
TANNER v. McCALL
Even less testimony can be culled from the record concerning
Ugorek’s position. McCall! testified that he eliminated the posi-
tion of senior sergeant supervisor. Transcript at 87-88. No con-
tradictory evidence was submitted. No evidence indicates
whether Ugorek could or should have been considered for
another position. McCall therefore met his burden of showing
an independent reason for not appointing Ugorek, which is fur-
ther reason for reversing the judgment for Ugorek.
Vv. CONCLUSION
The judgments for plaintiffs Campbell, Carlisle, Davenport,
Knuth, and Ugorek are REVERSED. The judgment against
plaintiff Tanner is AFFIRMED on other grounds. The denial of
a permanent injunction is AFFIRMED. The award of fees and
costs to prevailing plaintiffs is REVERSED.
A-23
°*
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
BOBBY F. TANNER, et al.,
Plaintiffs, NO. 77-2-Civ-Oc
v.
MALCOLM McCALL, etc.,
Defendant.
ORDER
For the reasons set forth in the Court’s opinion of this
date, it is now
ORDERED:
1. Defendant’s motion for judgment in accordance with his
motion for directed verdict is denied.
2. Defendant’s motion for a new trial is denied.
3. Plaintiffs’ motion for permanent injunctive relief is
denied.
4. Plaintiffs’ motion to strike defendant’s response to
plaintiffs’ permanent injunction motion is granted.
5. Defendant’s response to plaintiffs’ motion of permanent
injunctive relief is stricken as unnecessary.
6. Defendant’s motion for a bifurcated hearing on the post-
judgment motions in this case is denied.
7. Plaintiffs’ motion for front and back pay is denied.
8. Defendant’s motion to amend the judgment in this case
is granted.
9. The Clerk of the Court is directed to prepare an
amended final judgment against defendant in his official capaci-
ty orly, as the Sheriff of Lake County, Florida.
i0. Plaintiffs’ motion to reconsider whether defendant is
individually liable is denied.
11. Plaintiffs’ motion to tax costs is granted as to the
$227.75 for duplication expenses; is denied as to the $50.89 in
long distance telephone calls; and is left undecided concerning
travel, lodging, and meals expenses during depositions, hear-
A-24
ings, and trial of this case, pending an itemization of those costs
by plaintiffs. |
12. The motion of plaintiff Bobby F. Tanner for a new trial
is denied.
DONE and ORDERED at Jacksonville, Florida, this 9th
day of August, 1978.
/s/
Senior United States District Judge
Copies:
Neal D. Huebsch, Esquire
Post Office Drawer Q
Eustis, Florida 32726
Julius F. Parker, Jr., Esquire
Post Office Box 669
Tallahassee, Florida 32302
Ben R. Patterson, Esquire
1215 Thomasville Rd.
Tallahassee, Florida 32303
A-25
’*
' UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
-%
OCALA DIVISION
BOBBY F. TANNER, et al.,
Plaintiffs, NO. 77-2-Civ-Oc
v.
MALCOLM McCALL, etc.,
Defendant.
OPINION
Subject Matter Jurisdiction
After trial of this case, jury verdict, and entry of final judg-
ment, numerous motions by plaintiffs and defendant have been
filed. On May 5, 1978, the Court ordered counsel for plaintiffs
and defendant to brief the question whether the Court has sub-
ject matter jurisdiction to permit an award of damages and
monetary relief such as the jury verdict.
The Court is now convinced that it has federal question
jurisdiction under 28 U.S.C. §1331 for the purpose of allowing
monetary relief for plaintiffs. Consequently, the Court will pro-
ceed to rule on the remaining motions in this case.
Defendant’s Motion for Judgment
in Accordance with his Motion
for a Directed Verdict
Defendant has moved for judgment in accordance with his
motion for directed verdict at the close of all the evidence of the
case. At that time, the Court declined to rule on that motion,
reserving a ruling until after the jury returned its verdict. Defen-
dant contends that there was not sufficient evidence, direct or
circumstantial, upon which the jury could base its verdict for
five of the six plaintiffs. The Court cannot agree. There was
presented at trial enough circumstantial evidence from which
the jury could properly find a causual chain of facts upon which
to base its verdict. This Court will not attempt to read behind
A-26
that verdict, or to second-guess the jury’s reasoning that
resulted in that verdict.
Defendant’s Motion for a New Trial
Similarly, with defendant’s motion for a new trial, the
Court cannot conclude that the jury verdict in this case was un-
warranted and without sufficient evidence to justify it. Conse-
quently, for the same reasons, the Court will deny both the mo-
tion for judgment in accordance with defendant’s motion for a
directed verdict at the close of all of the evidence, and defen-
dant’s motion for a new trial.
Plaintiffs’ Motion for
Permanent Injunctive Relief
Plaintiffs have moved for permanent injunctive relief,
following the jury verdict which awarded damages for five of
the plaintiffs in an amount totaling $85,000.00. Plaintiffs wish
the Court to order their reinstatement as deputies in the Lake
County Sheriff’s Department. At the hearing on the motions in
this case, plaintiffs conceded that such an equitable remedy is
within the sound discretion of the Court. Further, plaintiffs
acknowledge that the gist of their request for injunctive relief is
for a mandatory injunction.
There are several reasons why the Court will exercise its
discretion to deny the request for permanent injunctive relief.
First, injunctive relief is always an equitable remedy, which is
warranted only when there is no adequate remedy at law. In this
case, however, it is clear that plaintiffs have an adequate remedy
at law and have received it. A jury after trial in this case re-
turned a verdict favorable to five of the six plaintiffs awarding a
total of $85,000.00 in damages to them. The purpose of an
award of damages is to compensate a person for injury or loss
sustained. An award of damages has always been a remedy at
law. Hence, plaintiffs have not sustained irreparable injury by
virtue of the fact that they have been compensated by an award
of legal damages for their injury. In the absence of any showing
of irreparable injury, the Court must conclude that the
equitable relief of a permanent injunction, requiring defendant
to reappoint plaintiffs, is unwarranted.
A-27
'*%
7%
Second, the damage which a wholescale reinstatement of
all of the plaintiffs would cause to defendant, as well as to other
deputies who are presently employed and who would be dis-
placed from their jobs, far outweighs any injury to plaintiffs
from refusing to order their reappointment.
Third, the court notes that under Florida law, Fila. Stat.
§30.07 and §30.09%(3), defendant is strictly liable as Sheriff of
Lake County for the acts of his deputies. Ordering him to reap-
point deputies with whom he has no rapport, in whom he has no
confidence, and for whom he has found acceptable replace-
ments, would place defendant in a precarious position of liabili-
ty under Florida law for whatever conduct plaintiffs might
engage in as reinstated deputies.
Finally, the harm that would result to those deputies who
are presently employed who would be displaced from their jobs
by ordering the reinstatement of plaintiffs, is probably
unredressable. Those deputies, unlike the plaintiffs in this case,
do not appear to have cause of action to remedy their losses and
damages suffered if they should suddenly loose their employ-
ment. Balancing all the equities and factors considered, the
Court finds that plaintiffs have received an adequate remedy at
law under their constitutional cause of action, and that the
harm that defendant and his present deputies might suffer by
mandatorily ordering plaintiffs’ reappointment as deputies, far
outweighs any need for the equitable remedy of a mandatory
injunction.
Plaintiffs’ Motion to Strike
Defendant’s Response to Plaintiffs’
Permanent Injunction Motion
Plaintiffs have moved to strike defendant’s response to
their motion for a permanent injunction. In that response,
defendant incorporates numerous documents which he alleges
show that plaintiffs are not qualified for reappointment as
Sheriff’s deputies and that requiring their reappointment would
result in a detriment to the Lake County Sheriff’s Department.
Because the Court has decided to deny plaintiffs’ motion for
permanent injunction, premised on the reasons already dis-
cussed, it is unnecessary for the Court to consider the ex-
traneous, post-trial matters which defendants wishes to present
A-28
Plaintiffs’ Motion to Reconsider
Whether Defendant Is Individually Liable
For the reasons set forth in the Court’s May 5, 1978, order,
and in accordance with the Court’s decision to amend the judg-
ment in this case, plaintiffs’ motion to reconsider whether
defendant is individually liable is denied.
Plaintiffs’ Motion to Tax
Costs and Defendant’s Objections
Plaintiffs have moved the Court to tax costs in this case.
Defendant objects to the taxation of only three items of costs:
(1) $227.75 for making 911 Xerox copies; (2) $971.57 for travel,
lodging, and meals during discovery depositions, hearings, and
trial; and (3) $50.89 in long distance calls on behalf of clients.
The Court is able to rule on two of those objections, but will re-
quire plaintiffs to itemize the particular expenses for the in-
dividual plaintiffs’ travel costs during depositions, hearings,
and trial. First, under 28 U.S.C. §1920(4), the Court has discre-
tion to award the taxation of fees for exemplification, duplica-
tion, and copying after a factual determination that such items
were ‘‘necessarily obtained for use in the case.’’ United States v.
Lynd, 334 F.2d 13, 19 (Sth Cir. 1964). The Court believes that
the duplication costs are expenses reasonably justified for
preparation and use in this case. Accordingly, the Court will
overrule defendant’s objection to the amount of $227.75 for
making Xerox copies. On the other hand, the Court believes
that long distance telephone costs incurred are not properly tax-
able items of cost. Therefore, the Court will sustain defendant’s
Objection to that item and will deny the taxation of $50.89 in
long distance telephone calls as costs for plaintiffs. Finally, the
Court will require plaintiffs to itemize and segregate the various
travel and lodging costs incurred by the different plaintiffs dur-
ing discovery, hearings, and trial of this case. Unless and until
plaintiffs so itemize those costs, the Court will not allow the tax-
ation of any of them.
Plaintiff Bobby F. Tanner’s
Motion for a New Trial
Plaintiff Bobby F. Tanner moves the Court to grant him a
new trial. Although the jury returned verdicts on behalf of five
A-29
‘%
-.
now. Consequently, the Court will grant plaintiffs’ motion to
strike defendant’s response to their motion for permanent in-
junction.
Defendant’s Motion for a Bifurcated
Hearing on Postjudgment Motions
Similarly, defendant’s motion for a bifurcated hearing, in
which the Court would hear all of the other posttrial motions,
but would wait to hear plaintiffs’ permanent injunctive relief, is
unnecessary in view of the Court’s decision to deny plaintiffs’
injunction motion. Consequently, the Court will deny defen-
dant’s motion for a bifurcated hearing.
Plaintiffs’ Motion for
Front and Back Pay
The Court has upheld the jury’s verdict in this case. When
the jury was charged concerning the law, it was instructed about
the loss of income as an element and measure of damages. It
must be presumed that the jury considered that element of
damages in deciding each of its verdicts for the five plaintiffs
who prevailed. The Court will not invade the jury’s province in
an attempt to divine what the verdicts were intended to supply
as relief. Furthermore, if the Court were to award back pay to
plaintiffs in addition to the jury verdicts, (1) it would necessarily
entail the assumption that the jury’s verdict omitted plaintiffs’
loss of income, or (2) it would result in a double award of lost
income. Either consequence is unacceptable to the Court.
Plaintiffs’ motion for front pay is moot in view of the
Court’s decision not to order their reinstatement.
Defendant’s Motion to
Amend the Judgment :
In the order of May 5, 1978, the Court held, ‘‘as it held on
March 9, 1978, that this case, under all the evidence presented,
must proceed,’’ and any judgment be entered, against defen-
dant in his official capacity only, as the Sheriff of Lake County,
Florida. The Court will grant defendant’s motion and will order
an amended judgment to be prepared.
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other plaintiffs against defendant, the jury refused to return a
verdict for plaintiff Bobby F. Tanner. For the same reasons that
the Court denied defendant’s motion for a new trial, the Court
must also deny plaintiff Bobby F. Tanner’s motion for a new
trial. Furthermore, in plaintiff Tanner’s case, the question of
confidential or policy-making status was one of mixed fact and
law, which the jury apparently decided adversely to plaintiff
Tanner’s assertions. The Court will not undermine the jury ver-
dict by trying to second-guess or redecide the questions within
its province.
Issued at Jacksonville, Florida, this 9th day of August,
1978.
/s/
Senior United States District Judge
Copies:
Neal D. Huebsch, Esquire
Post Office Drawer Q
Eustis, Florida 32726
Julius F. Parker, Jr., Esquire
Post Office Box 669
Tallahassee, Florida 32302
Ben R. Patterson, Esquire
1215 Thomasville Rd.
Tallahassee, Florida 32303
A-31
'*
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA:
OCALA DIVISION _
BOBBY F. TANNER, et al.,
Plaintiffs, NO. 77-2-Civ-Oc
v.
MALCOLM McCALL, etc.,
Defendant.
SUMMARY FINAL JUDGMENT
For the reasons set forth in the Court’s order and opinion
of this date, it is now
ORDERED and ADJUDGED:
1. Plaintiffs shall take nothing on their claims for denial of
due process and for stigmatization.
2. This action, insofar as it involves plaintiffs’ claims for
denial of due process and for stigmatization, is dismissed on the
merits.
ORDERED and ADJUDGED at Jacksonville, Florida,
this 20th day of October, 1977.
/s/
Judge
Copies:
Ben R. Patterson, Esquire
1215 Thomasville Rd.
Tallahassee, Florida 32303
Jack Skelding, Esquire
318 North Monroe Street
Tallahassee, Florida 32303
Welborn Daniei, Esquire
Post Office Box 189
Clermont, Florida 32711
A-32
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
BOBBY F. TANNER, et al.,
Plaintiffs, NO. 77-2-Civ-Oc
v. '
MALCOLM McCALL, etc.,
Defendant.
OPINION
Plaintiffs have moved for a preliminary injunction and
defendant has moved for summary judgment. Plaintiffs are
former deputies of the Sheriff of Lake County, Florida, and
defendant is the Sheriff. Three issues are presented by these mo-
tions: first, whether plaintiffs had a property interest (de facto
or de jure) in their employment as Lake County Sheriff’s
deputies, which they were deprived of without the fundamental
due process guaranteed by the Fourteenth Amendment; second,
whether plaintiffs’ First Amendment freedoms have been in-
fringed by termination from their employment solely because of
their political affiliation; and third, whether plaintiffs’ liberty
interest under the Fourteenth Amendment has been violated by
having their reputations as law enforcement officers stigmatized
so that they are hindered from finding new law enforcement
work.
FACTS
In November, 1976, the incumbent Sheriff of Lake Coun-
ty, Florida (‘Sheriff Bliss’) was defeated by defendant in an elec-
tion. At that time, plaintiffs had all been deputies under Sheriff
Bliss for several years; and all plaintiffs but one have been in
law enforcement work for more than ten years. There is no
evidence that plaintiffs were anything other than satisfactory
employees. On or about January 4, 1977, after personally inter-
viewing nearly all of the employees of the sheriff’s department,
defendant terminated plaintiffs’ employment, along with about
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*
a dozen other employees. All of the plaintiffs supported their
then-employer, the incumbent Sheriff Bliss, in the election that
he lost to defendant.
Summary Judgment: Two Criteria
Defendant has moved for summary judgment, to which he
is entitled, in part or altogether, only if he meets his burden to
show (1) the absence of any genuine issues of material fact on
any or all of plaintiffs’ claims, and (2) the right to a summary
judgment on any or all of those claims under the indisputable
dictates of the law. FED.R.CIV.P. 56; Adickes v. S. H. Kress &
Co., 398 U.S. 144, 26 L.Ed.2d 142 (1968); Poller v. CBS, Inc.,
368 U.S. 464, 7 L.Ed.2d 458 (1962); Eberhardy v. GMC, 404
F.Supp. 826, 829 (M.D. Fla. 1975) aff’d sub nom. Van Eberhar-
dy v. GMC, 534 F.2d 1406 (Sth Cir. 1976). If, as a matter of
federal law, Lighting Fixture & Elec. Supply Co. v. Continental
Ins. Co., 420 F.2d 1211, 1213 (Sth Cir. 1969), real litigable
issues exist, the parties must be allowed to try them; and sum-
mary judgment would be improper. Jnsurance Co. of N. Ameri.
v. Bosworth Constr. Co., 469 F.2d 1266, 1268 (Sth Cir. 1972);
United States v. Burket, 402 F.2d 426, 430 (Sth Cir. 1968).
Where, however, as a matter of federal law, some or all issues
raised are wells without the water of legal merit, trial of those
issues would be wasteful and unnecessary. Tyler v. Vickery, 517
F.2d 1089, 1094-95 (Sth Cir. 1975). Summary judgment, then, is
expedient and warranted as ‘‘a valuable tool in the law’s effort
to stem the tide of flooding litigation.’’ DeBardeleben v. Cum-
mings, 453 F.2d 320, 326 (Sth Cir. 1972).
First Issue: Property Interest
‘“‘A terminated or non-renewed public employee is
entitled’’ to the due process safeguards of the Fourteenth
Amendment ‘‘only if his termination or non-renewal is a
deprivation of liberty or property interests.’’ Siler v. Brady In-
dep. School Dist. , 553 F.2d 385, 387 (Sth Cir. 1977) citing Board
of Regents v. Roth, 408 U.S. 564, 571-72, 33 L.Ed.2d 548,
557-58 (1972); Stewart v. Bailey, 556 F.2d 281, 285 (Sth Cir.
1977); Thurston v. Dekle, 531 F.2d 1264, 1271 (Sth Cir. 1976).
In Board of Regents v. Roth, supra, the Supreme Court stated
that property interests ‘‘may take many forms.’’ Jd. at 576, 33
L.Ed.2d at 560. The existence of genuine property interests is
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not a matter of the effect of federal, constitutional law,
however. Jd. at 577, 33 L.Ed.2d at 561.
Rather, they are created and their dimensions are defined
by existing rules or understandings that stem from an in-
dependent source such as state law—rules or understand-
ings that secure certain benefits and that support claims of
entitlement to those benefits. Jd.
Recently, the Supreme Court reaffirmed this analysis of
‘property interest,’ Bishop v. Wood, 426 U.S. 341, 48 L.Ed.2d
684 (1976);
A property interest in employment can, of course, be
created by ordinance, or by an implied contract. In either
case, however, the sufficiency of the claim of entitlement
must be decided by reference to state law. Jd. at 344, 48
L.Ed.2d at 690.
In Bishop v. Wood, a discharged city police officer claimed that
he was deprived of a property interest in his job without the pro-
cedural safeguards of due process. He argued that a city or-
dinance allowing dismissal of permanent employees for per-
sistently unsatisfactory performance created an employment
tenure; and that such a tenure was a property interest requiring
the fundamentals of due process before it could be removed.
The ordinance had not been construed by any state courts, and
the district judge interpreted it from his many years of ex-
perience with legal practice in the state. Jd. at 345, 48 L.Ed.2d at
690. The ordinance was ambiguous enough to accommodate
different interpretations, id., and the Court of Appeals even-
tually divided evenly over it. Jd. at 346, 48 L.Ed. at 691. The
Supreme Court held that the district court’s interpretation was
both possible and tenable; that it derived indirect support from
a state supreme court decision; and that the Court of Appeals’s
acceptance of the interpretation foreclosed the high court’s in-
dependent reassessment of it. Jd. at 345-47, 48 L.Ed.2d at
690-91.
On the other hand, the Fifth Circuit interpreted a
municipal civil service board rule, permitting suspensions and
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‘>
dismissals of an employee for cause only, as creating a
legitimate property interest in continued employment that could
**not be taken away without due process.’’ Thurston v. Dekle;
$31 F.2d at 1272.
A divided panel of the Fifth Circuit, in Stapp v. Aveyelles
Parish School Bd., 545 F.2d 527 (Sth Cir. 1977) decided that a
school board superintendent’s letter of intent to a non-tenured,
probationary, principal created a de facto, objective expecta-
tions of continued employment, amounting to a protected prop-
erty interest. Jd. at 533-34. That decision is problematic,
however, because it constitutes a federal court’s ruling that
specific individual conduct by the superintendent could create
an employment property interest, despite established state law
to the contrary. Jd. at 535-37 (Jones, J., dissenting).
Siler v. Brady Indep. School Dist., 553 F.2d 385 (Sth Cir.
1977), is more closely in line with Bishop v. Wood, supra, and
Board of Regents v. Roth, supra, by the Supreme Court, as well
as Thurston v. Dekle, supra, by the Fifth Circuit. The plaintiff
in Siler v. Brady Indep. School Dist., supra, had been a school
teacher employed by a school district under two successive one-
year contracts. During the life of the second contract, the school
district was annexed by the defendant school district. A resolu-
tion by the board of the defendant school district at approx-
imately the time of the merger declared that (1) the defendant-
successor school district would honor the current contracts be-
tween the predecessor school district and its teachers, and (2) at
expiration of those contracts, the teachers of the predecessor
school district would stand on equal footing with, and be
treated the same as, the successor school district’s own teachers.
Throughout that school year, the plaintiff encountered a ‘‘con-
tinuing series of difficulties with the principal of the school’’
where the plaintiff taught. /d. at 387. Consequently, the prin-
cipal did not recommend plaintiff’s re-employment; and the
board of the defendant school district endorsed non-renewal of
nlaintiff’s contract. The plaintiff was granted an appearance
before the board, but the board denied his request for recon-
sideration and sent him a lengthy list of performance
The district court held that (1) the board’s procedures
satisfied due process requirements, since (2) the plaintiff did not
A-36
have a property interest which the Fourteenth Amendment
would protect. Searching for a state law origin for the plaintiff’s
claim of de facto property interest, the Court of Appeals found
that Texas law does not recognize a de facto tenure from even a
lengthy service of successively renewed, one-year contracts. /d.
at 388. The Court of Appeals affirmed the district court’s ruling
that the plaintiff had no protectable property interest under
state law. Jd. at 388, 389.
Finally, in Stewart v. Bailey, 556 F.2d 281 (Sth Cir. 1977) a
college teacher was terminated during the life of his one-year
contract. The grounds for his termination were insubordination
and willful disobedience of rules and regulations. The plaintiff
alleged that his First Amendment right to freedom of speech
was denied, that his property interest under state law was im-
paired without the protections of Fourteenth Amendment pro-
cedural due process, and that his liberty interest was infringed
by denigration of his good name, reputation, and integrity.
However, before his discharge became effective, the plaintiff
submitted a letter of resignation effective at a later date. The
resignation was accepted. The plaintiff had taken that tactic to
enable him ‘‘to obtain a favorable job reference.’’ Jd. at 284.
Not until a year later did he file suit.
The Court of Appeals, affirming the district court, found
no evidence in the record to support the First Amendment,
freedom-of-speech claim. On the issues of procedural due pro-
cess to protect a property interest, and pejorative infringement
of a liberty interest, the court held that (1) the college had met
its initial duty to provide the plaintiff with a due process forum;
but, (2) by submitting his resignation for his own advantages,
the plaintiff deliberately waived his right to due process and ex-
cused the college from any further Fourteenth Amendment
obligations. Jd. at 285-86.
When the present case was begun, plaintiffs claimed a de
jure property interest under Fila. Stat. §112.531 et seqg., ‘‘The
Police Officers’ Bill of Rights.’’ Previously, the applicability of
that statute to create a property interest for sheriffs’ deputies
was ‘‘an open and undecided question.’’ Tanner v. McCall, 425
F.Sup». 257, 258 (M.D.Fla. 1977); see Schrank v. Bliss, 412
F.Supp. 28, 41 and nn. 9 and 10 (M.D.Fla. 1976). Florida ap-
pellate courts have uniformly ruled, however, that Flvrida
A-37
’*
|
sheriffs do not ‘‘come within the purview’’ of Fila. Stat.
§112.531(2), ‘‘absent some other statutory exception to the con-
trary.”’ Tanner v. McCall, 425 F.Supp. at 258, citing Evans v.
Hardcastle, 339 So.2d 1150, 1151 (2d D.C.A. Fla. 1976);
Johnson v. Wilson, 336 So.2d 651, 652 (Ist D.C.A. Fla. 1976).
This court, therefore, held that ‘“‘plaintiffs in this case, as
former deputies sheriff, are not included within the scope of the
statutory rights created and conferred”’ by Fla. Stat. §112.531 et
seq. Tanner v. McCall, 425 F.Supp. at 258.
Hence, without considering or prejudicing plaintiffs’
claims (and right to establish those claims) of property in-
terests derived from other source...
the Court struck the allegations and claims of entitlement under
Fla. Stat. §112.531 et seq. ‘‘as contrary to the decisional law of
Florida.’’ Jd.
Plaintiffs propose that Fla. Stat. §447.209 of the Public
Employees Relations Act (‘“PERA’)' creates a de jure property
interest in their jobs as deputies. That section, however, rather
than conferring a general property interest upon public
employees of Florida, expressly reserves to employers the tradi-
tional management prerogatives that are involved in operating a
business, insofar as they are not exploited (1) to refuse contrac-
tually obligatory grievance procedures, or (2) to commit unfair
labor practices. _
Plaintiffs have no de jure right to continued employment,
and the Court now will consider their claims of de facto proper-
ty interest. Plaintiffs argue that this Court’s decision in Schrank
v. Bliss, supra, found that the former sheriff of the same county
had established a de facto expectation of continued employment
by means of the system of probationary and permanent
employees. 412 F.Supp. at 37, 40-41. That finding, ‘‘while firm
for the purpose of issuing’’ a preliminary injunction, was ex-
pressly declared to be ‘‘tentative and not binding with respect to
the court’s ruling and final judgment on the merits . . .’” Jd. at
42. See also Jacksonville Maritime Ass’n v. Local 1408-A, In-
ternat’! Longshoremen’s Ass’n., 424 F.Supp. 58, (M.D.Fia.
1976); Poe v. Charlotte Memorial Hosp., 374 F.Supp. 1302,
A-38
1212 (W.D.N.C. 1974). Schrank v. Bliss, supra, was ultimately
dismissed voluntarily by agreement of the parties, and the court
never reached the merits of the de facto property-interest claim.
In the present posture of this case, however, the Court can
determine the merits of that claim. While plaintiffs’ preliminary
injunction motion does not permit such a ruling, defendant’s
summary judgment motion does. Sheriff Bliss, the defendant in
Schrank v. Bliss, supra, and the incumbent predecessor of
defendant in this case, continues to maintain that the distinction
between probationary and permanent deputies under his ad-
ministration was a merit-monetary one only. Deposition at 5-7.
Consistent with his position in Schrank v. Bliss, 412 F.Supp. at
41, Sheriff Bliss continues to insist that ‘permanent’ did not
mean that a deputy acquired a tenured status, dischargeable on-
ly for cause. Deposition at 7. The Court need not decide what
were the legal consequences of being a permanent deputy under
Sheriff Bliss. All of the evidence, documents and depositions
conclusively reveal the lack of any showing that such a
probationary-permanent classifications system, even if it might
have created an objective property interest, had been adopted
and carried on by Sheriff Bliss’ successor, defendant in this
case. Additionally, the depositional testimony of all plaintiffs in
this case uniformily establishes that their expectations of con-
tinued employment were based on their own, personal beliefs.
In short, their property interests are subjectively, not non-
subjectively, founded. The Court concludes that plaintiffs had
no property interests, under Florida law, in their jobs as Lake
County Sheriff’s deputies. Therefore, no Fourteenth Amend-
ment due process guarantees are required.
A-39
7%
SECOND ISSUE:
Stigmatization—Injury to Reputation, Good Name,
and Integrity
In Perry v. Sinderman, 408 U.S. 593, 33 L.Ed.2d 570
(1972), the Supreme Court declared that the Fourteenth
Amendment will protect a public employee whose constitutional
liberties are infringed by his termination, even if he did not have
a property interest in his employment that would be protected
by the Due Process Clause. /d. at 596-99, 33 L.Ed.2d at 577-78.
The Court explained in further detail that declaration in Paul v.
Davis, 424 U.S. 693, 47 L.Ed.2d 405 (1976). The Court
distinguished between mere injuries to ones good name or
reputation alone, and an injury to good name or integrity in
conjunction with the denial of interests that enjoy the protec-
tion of the Due Process Clause. /d. at 706, 709, 710-12, 47
L.Ed.2d at 416-17, 418, 419-20. Those interests that are
guaranteed the protection of fundamental due process are liber-
ty or property interests (1) created by state law or (2) guaranteed
by the Bill of Rights ‘‘independently of state law;’’ Jd. at 710-11
and n. 5, 47 L.Ed.2d at 419 and n. 5; and public employment is
one property interest that arises from state law. Jd. at 706, 47
L.Ed.2d at 416-17. See Bishop v. Wood, 426 U.S. at 344 and n.
7, 48 L.Ed.2d at 690 and n. 7; Board of Regents v. Roth, 408
U.S. at 577, 33 L.ED.2d at 561.
The Supreme Court recently reaffirmed that principle in
Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 50
L.Ed.2d 471, 481 (1977). Earlier, in Board of Regents v. Roth,
supra, the Court had discussed that principle (which was
originally stated in Perry v. Sinderman, supra, and further ex-
plained later in Paul v. Davis, supra) in connection with a liber-
ty interest in one’s reputation, good name, and integrity as it af-
fected the ability to carry on a job or practice a profession. The
Court stated in Board of Regents v. Roth, supra, that ‘‘where a
person’s good name, reputation, honor, or integrity is at stake’’
in a decision not to continue his employment, the fundamentals
of due process are required. 408 U.S. at 573, 33 L.Ed2d at
558-59. In fact, as the Court explained, if such a stigmatization
had been involved in Board of Regents v. Roth, supra, the deci-
sion about the necessity for basic due process would have been
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different, notwithstanding the ultimate absence of a genuine
property interest under the relevant state law. Jd.
The upshot of those decisions, with respect to stigmatiza-
tion, is that one must meet the ‘‘stigma-plus’’ test to assert a
claim for fundamental due process under §1983. Moore v.
Otero, 457 F.2d 435, 437 (Sth Cir. 1977); Sullivan v. Brown, 544
F.2d 279, 283-84 (6th Cir. 1976); Colaizzi v. Walker, 542 F.2d
969, 973-74 (7th Cir. 1976); Stretten v. Wadsworth Veterans
Hosp. 537 F.2d 361, 365-66 (9th Cir. 1976). It is not necessary
that a plaintiff ultimately prevail on his claim to a property in-
terest or liberty interest. A plaintiff need only allege the denial
of a property or liberty interest that is arguable or putatively
plausible under state law or the Bill of Rights, in order to allege
as well a federal claim for stigmatization of reputation, good
name, or integrity. See, e.g., Colaizzi v. Walker, 542 F.2d at
972-74; Stretten v. Wadsworth Veterans Hosp. 537 F.2d at
365-66.
In Paul v. Davis, supra, and in every decision following it,
the plaintiff’s federal claim of stigma was denied from the
outset, either by dismissal or by summary judgment, because
the denial of a plausible property or liberty interest, under state
law or the Bill of Rights, was not alleged. In Sullivan v. Brown,
544 F.2d 279 (6th Cir. 1976), the internal disciplinary transfer of
a teacher did not allege the denial of any property or liberty in-
terest under Tennessee law. /d. at 282-83. Hence, the teacher’s
allegation of stigmatization to her reputation a priori failed to
state a federal claim entitled to the protection of fundamental
due process. Jd. at 283-85.
Similarly, in Moore v. Otero, 557 F.2d. 435 (Sth Cir. 1977),
a municipal police officer’s internal, disciplinary transfer from
corporal to patrolman did not allege the denial of any property
or liberty interest under the law of Florida or the City of Tam-
pa. Jd. at 436-37. Thus, the policeman failed as well to state a
federal claim for stigmatization that would entitle him to basic
due process. Jd. at 437-38. See also Confederation of Police v.
City of Chicago, 547 F.2d 375, 376 (7th Cir. 1977).
An attorney who had been intemperately and injudiciously
denounced in open court by a state judge, in Dean v. Shiver, 547
F.2d 227 (4th Cir. 1976) sued the judge under 42 U.S.C. §1983.
Insofar as his claim might have been for the stigma suffered by
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’ >
the juridical slander, it was deficient because of the lack of any
arguable property or liberty interest that was threatened. /d. at
229.
In Walker v. Cahalan, 542 F.2d 681 (6th Cir. 1976), a
criminal defendant who had served eighteen years of a life
sentence for first-degree murder, obtained post-conviction relief
in a Detroit municipal court. The prosecutor, when refused
leave to appeal the decision to the Michigan Court of Appeals,
decided to nolle prosequi the murder charge. However, when a
state senator introduced a bill in the Michigan legislature to
compensate the criminal defendant for his years spent in prison,
the prosecutor disseminated a letter deploring the notion that
the criminal defendant was an innocent man, unjustly impri-
soned and deserving restitution. A Detroit News columnist
wrote a story based on the case and on the prosecutor’s letter.
The criminal defendant sued the prosecutor and the journalist.
The Court of Appeals held that no federal stigmatization claim
under §1983 was alleged because the plaintiff was unable to
assert the denial of any property or liberty interest under state
law. Id. at 683-84.
Plaintiffs claim that their discharges by defendant imposed
scandalous stigmata upon their reputations and good names;
that they are greatly disabled in obtaining new employment as a
result of their stigmatization; and that they have not had an op-
portunity to eradicate it in a forum of fundamental due process.
They rely chiefly upon the obligatory certification system, by
the State of Florida’s Department of Criminal Law Enforce-
ment’s Bureau of Standards, in the Division of Standards and
Training. In order to become eligible for employment as a law
enforcement officer in the state, every candidate must be cer-
tified as qualified under the minimum standards of the Bureau,
after successfully completing a mandatory, basic course of
training. Once a law enforcement employee is no longer
employed, the employer must notify the Bureau of Standards
which removes the officer’s certificate from active status until
his re-employment.
In Schrank v. Bliss, 412 F.Supp. at 33, 41, this Court found
that, for the purposes of enjoining the defendant, the state law
enforcement certification system contributed to a stigmatizing
of the plaintiff’s good name and reputation. Plaintiffs seek the
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Court to rule similarly for them. The factual circumstances in
Schrank v. Bliss, supra, were different, however. Not only was
the state bureau of standards notified that the plaintiff was no
longer employed, a letter was sent by the defendant informing
the bureau that the plaintiff ‘‘had been terminated involuntarily
for insubordination.’’ Jd. at 33. Additionally, the defendant
had freely heralded to the news media his accusations that the
plaintiff had been fired for insubordination and unseemly con-
duct. Id. at 33-34, 41.
In the present case, there have been neither allegations nor
evidence of any publicized deprecation of plaintiffs by defen-
dant. Defendant’s own position, expressed in his deposition,
was that he had no negative evaluation of plaintiffs, but merely
replaced them as the act of an employer’s discretionary judg-
ment in striving for the greater benefit of the Sheriff’s depart-
ment. Deposition at 67. Moreover, without exception, when
asked at deposition, the plaintiffs were unable to point to a
single objective instance where their good names, integrity, or
reputations have been stigmatized by defendant. The Court
concludes that plaintiffs have stated no federal claim, under
§1983, that their good names, reputations, and integrity have
been stigmatized. Consequently, they are not entitled to the
basic guarantees of Fourteenth Amendment due process for
such claims.
THIRD ISSUE:
Infringement of First Amendment Freedoms—
Politically Discriminatory Discharges
While the liberties guaranteed by the First Amendment are
not absolute, Elrod v. Burns, 427 U.S. 347, 360, 49 L.Ed.2d
547, 558, (1976), they are so fundamental to the freedom of
society under the American form of constitutional: democracy
that any denial of those liberties is subject to strict scrutiny. Jd.
at 362; 49 L.Ed.2d at 559; Buckley v. Valeo, 424 U.S. 1, 64-65,
46 L.Ed.2d 659, 713-14 (1976); NAACP v. Alabama, 357 U.S.
449, 460-61, 2 L.Ed.2d 1488, 1498-99 (1958); Stevens v. Berger,
428 F.Supp. 896, 906 (E.D.N.Y. 1977). In order to justify
abridging or denying First Amendment freedoms, a government
A-43
rs
->
must show not only a legitimate governmental interest, but also
a compelling and overwhelming need to achieve that interest at
the cost of basic liberties, by means that are the least restrictive .
ones possible. Kusper v. Pontikes, 414 U.S. 51, 58-59, 38
L.Ed.2d 260, 267-68 (1973); Williams v. Rhodes, 393 U.S. 23,
31-34, 21 L.Ed.2d 24, 31-33 (1968); Keyishian v. Board of
Regents of SUNY, 385 U.S. 589, 602-04, 17 L.Ed.2d 629,
640-41 (1967); NAACP v. Button, 371 U.S. 415, 438-39, 9
L.Ed.2d 405, 421-22 (1963); Bates v. City of Little Rock, 361
U.S. 516, 524, 4 L.Ed.2d 480, 486 (1960); NAACP v. Alabama,
357 U.S. at 464-66, 2 L.Ed.2d at 1500-02; United Public
Workers v. Mitchell, 330 U.S. 75, 95-96, 91 L.Ed. 754, 770-71
(1947); Thomas v. Collins, 323 U.S. 516, 529-32, 89 L.Ed. 430,
439-41 (1945); Division 241, Amalg. Transit Union v. Suscy,
538 F.2d 1264, 1266 (7th Cir. 1976); Stevens v. Berger, 428
F.Supp. at 906.
In Elrod v. Burns, supra, the Supreme Court settled that
the highly valued freedoms of the First Amendment remain in-
violable in public employment situations. The plaintiffs in E/rod
v. Burns, supra, were Republican employees of the Cook Coun-
ty, Illinois Sheriff’s Office, not protected by an objective tenure
of employment such as civil service. They were all terminated or
threatened with termination by a successor sheriff, a Democrat.
There was no question that the spoils system of partisan politics
was the cause. The Supreme Court held that, regardless of the
existence of a property right in ones job under state law, a
public employee who is neither in a policy-making nor in a con-
fidential capacity may not be discharged or threatened with
discharge, solely because of his political beliefs and affiliations.
427 U.S. at 373, 49 L.Ed.2d at 565, and 427 U.S. at 375, 49
L.Ed.2d at 566 (Stewart & Blackmun, JJ, concurring). Such
politically discriminatory discharges violate the rudimentary
liberties of the First Amendment, to freely believe, speak, and
affiliate as one chooses.
The Supreme Court’s decision in Elrod v. Burns, supra,
was consistent with earlier pronouncements by the Court con-
cerning fundamental constitutional freedoms. In Perry v.
Sinderman, supra, the Court, while finding no de jure property
interest for the college teacher under Texas law, declared:
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s
For at least a quarter-century, this Court has made clear
that even though a person has no “‘right’”’ to a valuable
governmental benefit and even though the government
may deny him the benefit for any number of reasons, there
are some reasons upon which the government may not re-
ly. It may not deny a benefit to a person on a basis that in-
fringes his constitutionally protected interests—especially,
his interest in freedom of speech. For if the government
could deny a benefit to a person because of his constitu-
tionally protected speech or associations, his exercise of
those freedoms would in effect be penalized and inhibited.
This would allow the government to ‘‘produce a result
which [it] could not command directly.’’ [Citations omit-
ted] Such interference with constitutional rights is imper-
missible.
408 U.S. at 597, 33 L.Ed.2d at 577, quoted in Elrod v. Burns,
427 U.S. at 359, 49 L.Ed.2d at 557.
Moreover, the Supreme Court’s decision in E/rod v. Burns,
supra, is significant for its reliance upon, and consistency with,
Illinois State Employees Union v. Lewis, 473 F.2d 561 (7th Cir.
1972). The decision in Elrod v. Burns, supra, was a judgment
and opinion by three justices, with a special concurrence by two
other justices; but Mr. Justice Stevens did not participate in that
decision. However, Mr. Justice Stevens, as a Seventh Circuit
Judge, authored the opinion in J/linois State Employees Union
v. Lewis, supra, with which the Supreme Court’s decision in
Elrod v. Burns, 427 U.S. at 357, 366, 368, 49 L.Ed.2d at 556,
561, 562 is in accord.
In Illinois State Employees Union v. Lewis, supra, or-
dinary, non-policy-making, non-confidential employees of Il-
linois Secretary of State’s Office were terminated when the in-
cumbent Secretary of State, a Democrat, died and the
Republican governor appointed a Republican successor. The
district court had granted summary judgment for the defen-
dant. 473 F.2¢ at 565. Mr. Justice Stevens formulated the issue
as whether a non-policy-making public employee ‘‘may be
discharged for refusing to transfer his political allegiance from
one political party to another.’’ Jd. at 566. He held that the
‘‘plaintiffs have alleged an impermissible basis for their
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discharge,’’ Jd. at 573, and ‘‘are entitled to an opportunity to
prove their case.’’ Id. at 576. The district court’s entry of sum-
mary judgment for the defendant was reversed as erroneous, in-
asmuch as the record at that point did not
... Support a factual finding that no plaintiff was
dismissed for an impermissible reason or the legal conclu-
sion that [the] defendant was justified in prescribing active
support of the Republican Party as a condition of con-
tinued public employment. Jd. at 576.
As a result of the Supreme Court’s decision in Elrod v.
Burns, supra, therefore, there is no doubt that non-
confidential, non-policy-making public employees are protected
against being harassed or discharged solely because of exercising
First Amendment freedoms, such as political beliefs, expres-
sions, and associations. Norbeck v. Davenport Community
School Dist., 545 F.2d 63, 67 (8th Cir. 1976); Division 241,
Amalg. Transit Union v. Susey, 538 F.2d at 906 (E.D.N.Y.
1977); Nader v. Schaffer, 417 F.Supp. 837, 845 (D.Conn. 1976);
Barton v. City of Eustis, 415 F.Supp. 1355, 1359 (M.D.Fla.
1976). Those First Amendment freedoms are protected even if a
public employee does not have tenure or some other property
right in his job under state law.
In Gabriel v. Benitz, 390 F.Supp. 988 (D.P.R. 1975), the
plaintiff, a field coordinator within the Puerto Rico Department
of Education, found the terms and conditions of her employ-
ment substantially changed, culminating in a decision not to
renew her contract, five months after a political change in the
Secretary of Education. The district court found that the plain-
tiff had met her burden to show, even by circumstantial
evidence, that her termination was prompted solely because of
her political affiliation. Jd. at 992. Any lack’ of contractual
tenure or other property right in her job was immaterial to the
protection of her First Amendment freedoms. Jd. The First
Cirucit affirmed the district court’s finding of politically
discriminatory animus, Rivera Morales v. Benitz de Rexach, 541
F.2d 882, 885 (ist Cir. 1976), but at the same time rejected the
same First Amendment protection for a different, policy-
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making employee of the Puerto Rico Department of Education.
Id.
The plaintiff in Lasco v. Koch, 428 F.Supp. 468 (S.D.IIl.
1977), had been an executive, civil service employee at the II-
linois Veterans’ Home since 1973. Beginning in 1975 the plain-
tiff experienced changes in his job conditions and duties, with
the final result that his job alone, out of 435 positions, was to be
abolished. The plaintiff had supported a different Democratic
primary candidate than the defendants. In late 1976, after
receiving critical reports in his personnel file, the plaintiff was
notified that he was going to be laid off because of reorganiza-
tion. The district court found that the plaintiff had presented a
prima facie case of political discrimination sufficient to warrant
a preliminary injunction. /d. at 475. But the court stayed further
exercise of its.jurisdiction in the case pending review by the state
civil service commission that had primary jurisdiction over the
plaintiff’s job loss. Id.
In the present case, plaintiffs have the burden to show,
both ultimately on the merits, and prima facie on their
preliminary injunction motion, that they were not continued in
their jobs because of political discrimination. Elrod v. Burns
427 U.S. at 374, 49 L.Ed.2d at 565-66; Illinois State Employees
Union v. Lewis, 473 F.2d at 567; Lasco v. Koch, 428 F.Supp. at
475; Gabriel v. Benitz, 390 F.Supp. at 992. However, plaintiffs
have not met their burden. Defendant has indicated that he did
not know or consider the political allegances of plaintiffs or any
other employees of the sheriff’s department when he decided to
retain some and replace others. Deposition at 41, 55, 63.
Although plaintiffs supported the candidacy of the incumbent
sheriff, so did many other employees, who were retained by
defendant. Hence, the fact of plaintiffs’ uniform political sup-
port alone cannot show any infringement of their First Amend-
ment freedoms by defendant. Far from showing anything addi-
tional, plaintiffs have indicated that defendant did not inquire,
and discouraged voluntary statements, about their political
stances in the preceding election. The Court concludes that
plaintiffs have not met their burden to show a prima facie case
of politically discriminatory animus by defendant.
Furthermore, even if plaintiffs had demonstrated a prima
facie case of politica! discrimination in defendant’s decision not
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to continue their employment, they would need to show more in
order to prevail. Plaintiffs must show that any impermissible in-
fringement of protected First Amendment freedoms (such as
political beliefs, expression, and association) was the primary
and dominant cause of their terminations. In short, plaintiffs
must show that, even if defendant wished to curtail their pro-
tected First Amendment freedoms, apart from that wrongful
reason, there were no other good reasons that independently
justified their discharges. 2
In Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 50
L.Ed.2d 471 (1977), an untenured teacher claimed that a refusal
to rehire him was motivated by the defendant’s antipathy tc “he
ieacher’s freedom of speech. The teacher had telephoned a local
radio station, reporting an intra-school memorandum about a
teacher’s dress code. Tixe information was broadcast as a news
item. When the school board decided not to rehire the teacher,
it listed the radio news-information incident as one of the
reasons. However, the teacher had repeatedly become em-
broiled in fractious quarrels with other teachers and school
employees, and had used an obscene gesture to female students
who disobeyed his order as lunchroom supervisor. The obscene
gesture was also listed as a reason not to rehire the teacher. The
Supreme Court acknowledged that the teacher’s telephone call
was constitutionally protected freedom of expression. /d. at
482. The Court held, however, that even if the teacher’s First
Amendment speech was a substantial cause for not being
rehired, that would not automatically mean that the refusal to
rehire him violated the federal Constitution. Jd. at 482-83. The
proper causation test (1) distinguishes between results caused by
violations of constitutional rights and results ‘‘not so caused,”’
and (2) avoids entailing ‘‘undesirable consequences not
necessary”’ to protecting those rights. /d. at 483-84.
Following the Supreme Court’s analysis in Mt. Healthy Ci-
ty School Dist. Bd. of Educ. v. Doyle, supra, the district court
in Lasco v. Kock, 428 F.Supp. 468 (S.D.Il. 1977) enjoined
preliminarily the plaintiff’s layoff, but stayed further action
pending the outcome of state administrative proceedings. Jd. at
475. The defendants contended that the plaintiff’s layoff
resulted from a reorganization justified by legitimate business
necessity. Jd. at 475, 476. If that were so, then despite the
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political discord between the defendants and the plaintiff, his
layoff might not have been a violation of his First Amendment
rights. Jd. at 476. On the other hand, there was the possibility
that the reorganization was a mere sham to disguise politically
animated infractions of the plaintiff’s constitutional rights. Jd.
Recently, the Fifth Circuit, in Garza v. Rodriquez, 559
F.2d 259 (Sth Cir. 1977), upheld the discharge of a Texas,
juvenile probation officer who had no property interest in his
job under state law. The probation officer had been arrested for
intoxication and behaved abusively. Later, the probation officer
indicated his intention to sue the police, and shortly thereafter
he was fired. He sued the head of the department where he had
been employed. He claimed that his termination was because of
his threat to sue the police, and therefore was a discharge “‘for
the exercise of his constitutional rights.’’ Jd. at 260. There had
also been evidence presented to the district court that amounted
to ‘‘just cause to terminate [the plaintiff].’’ Jd. The Fifth Cir-
cuit applied the Supreme Court’s causation test in Mt. Healthy
City School Dist. Bd. of Educ. v. Doyle, supra, to determine if
the plaintiff’s discharge, which was based on justified as well as
impermissible cause, constituted a violation of fundamental
constitutional rights. Jd. at 261-62. The Court of Appeals con-
cluded that the decision to terminate the plaintiff had been
premised on an independently justifiable ground, so that join-
ing a constitutionally forbidden reason as another ground did
not taint the good cause for the discharge. Jd.
Plaintiffs in the present case have not demonstrated
anything near a likelihood (1) that they were replaced for
politically discriminatory reasons, or (2) that if they had been,
there were no other, independent and legitimate reasons to
justify replacing them. Defendant, meanwhile, maintains that
his decision to replace plaintiffs was based on reasons that, con-
sistent with his campaign promise, would achieve a better
operating sheriff's department. Whether those reasons are
sound is not within the province of this Court to determine, so
long as they are arguably legitimate and not a mere pretext for
violating basic constitutional freedoms. Plaintiffs have not
established a prima facie case of such pretense that would entitle
them to a preliminary injunction.
On the other hand, there exists a genuine, material question
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of fact concerning plaintiffs’ allegation that they were not re-
tained in their jobs because of their political views. The Court
cannot decide that factual question on a summary judgment
motion, and the motion must be denied with respect to this one
issue. Additionally, whether plaintiffs Tanner and Campbell, as
chief deputy sheriff and secretary to the sheriff, respectively,
were policy-making or confidential employees, and therefore
not protected in their jobs by the First Amendment freedoms,
appears to be a mixed question of law and fact. Elrod v. Burns,
427 U.S. at 367-68, 49 L.Ed.2d at 562; Norbeck v. Davenport
Community School Dist., 545 F.2d at 67; Rivera Morales v.
Benitz de Rexach, 541 F.2d at 884-85; Rosenberg v. Redevelop-
ment Authority of Phila., 428 F.Supp. 498, 500-01 (E.D.Pa
1977); Nader v. Schaffer, 417 F.Supp. at 845. Insofar as the fac-
tual facet of that question involves an evidentiary determination
of the duties, responsibilities, terms and conditions of a par-
ticular job, it is material to the issue of First Amendment pro-
tection and requires further evidence. Summary judgment,
therefore, is unjustified d improper in the present posture of
this case.
Preliminary Injunction: Four Criteria
A preliminary injunction is an extraordinary equitable
remedy. Sampson v. Murray, 415 U.S. 61, 92 n. 68, 39 L.Ed.2d
166, 187 n. 68 (1974); Canal Authority of the State of Fla. v.
Callaway, 489 F.2d 567, 573 (Sth Cir. 1974); Lasco v. Koch, 428
F.Supp. at 475; Jacksonville Maritime Ass’n, Inc. v. Local
1408-A, Internat’| Longshoremens Ass’n, 424A F.Supp. 58, 64
(M.D.Fla. 1976); Jets Services, Inc. v. Hoffman, 420 F.Supp.
1300, 1302 (M.D.Fla. 1976); Schrank v. Bliss, 412 F.Supp. 28,
34 (M.D.Fia. 1976). A preliminary injunction is warranted only
if four criteria are established: (1) substantial likelihood of
plaintiffs’ eventual success on the merits; (2) irreparable injury
because of the unavailability of an adequate remedy at law; (3)
the plaintiffs’ threatened injury outweighs possible injury to the
defendant; and (4) no disservice to the public interest from is-
suance of an injunction. Granny Goose Foods, Inc. v. Local 70,
Brotherhood of Teamsters and Auto Truck Drivers, 415 U.S.
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423, 441, 443, 39 L.Ed.2d 435, 451, 452 (1974); Sampson v.
Murray, 415 U.S. at 84 n. 53, 39 L.Ed.2d at 183 n. 53 (1974);
Louisiana Consumer’s League, Inc. v. State Bd. of Optometry
Examiners, 557 F.2d 473, 474 (Sth Cir. 1977); Martinez v.
Mathews, 544 F.2d 1233, 1243 (Sth Cir. 1976); Buchanon v.
United States Postal Service, 508 F.2d 259, 266 (Sth Cir. 1975);
Canal Authority of State of Fla. v. Callaway, 489 F.2d at 572;
Blackshear Residents Organiz. v. Romney, 472 F.2d 1197, 1198
(Sth Cir. 1973); Allison v. Froehlke, 470 F.2d 1123, 1126 (Sth
Cir. 1972); Southerwestern Bell Teleph. Co. v. CWA, 454 F.2d
1333, 1334, 1337 (Sth Cir. 1972); Jacksonville Maritime Ass’n v.
Local 1408-A, Internat’! Longshoremen Ass’n, 424 F.Supp. at
64; Jets Services, Inc. v. Hoffman, 420 F.Supp. at 1305;
Schrank v. Bliss, 412 F.Supp. at 34. The burden is upon plain-
tiffs to satisfy these four criteria. Hillsboro News Co. v. Tampa,
544 F.2d 860, 861 (Sth Cir. 1977); Penn v. San Juan Hosp., 528
F.2d 1181, 1185 (10th Cir. 1975); Canal Authority of State of
Fla. v. Callaway, 489 F.2d at 572; Jacksonville Maritime Ass’n
v. Local 1408-A, Internat’! Longshoremen Ass’n, 424 F.Supp.
at 65; Jets Services, Inc. v. Hoffman, 420 F.Supp. at 1305. The
evidence presented for each of those criteria is balanced by the
Court on a sliding scale analysis: a much stronger showing on
one or more of the necessary factors lessens the amount of
proof required for the remaining factors. State of Texas v.
Seatrain Internat’! S.A. 518 F.2d 175, 180 (Sth Cir. 1975); Siff
v. State Democratic Exec. Committee, 500 F.2d 1307, 1309 (Sth
Cir. 1974); Jacksonville Maritime Ass’n v. Local 1408-A, Inter-
national Longshoremens Ass’n, 424 F.Supp. at 65; Jets Ser-
vices, Inc. v. Hoffman, 420 F.Supp. at 1305-06; Schrank v.
Bliss, 412 F.Supp. at 34.
1. Likelihood of Success on the Merits
The Court has already held that plaintiffs have failed to
show that it is more likely than not that defendant replaced
them as deputies sheriff for politically discriminatory reasons;
and that such replacement constituted a violation of heir First
Amendment freedoms because it was prompted only by political
discrimination. Consequently, plaintiffs have not satisfied this
criterion for a preliminary injunction.
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yt
2. Irreparable Injury
Because the Court has already held that plaintiffs have not
demonstrated a likelihood of eventual success on their claim
that their First Amendment rights have been denied, the fact
that plaintiffs might be sustaining irreparable losses and injury
cannot justify issuing a preliminary injunction. The fact of ir-
reparable loss or injury alone, without any arguable likelihood
to succeed legally on the merits of one’s claims, could warrant
an injunctive remedy (or any other remedy) only on the theory
that for every wrong and ill that occurs there should be a legal
remedy fashioned by the Court. Regardless of whether such a
legal theory is viable in courts of general jurisdiction, such a*
state courts, that theory is wholly inconsistent with the strictly
limited jurisdiction of federal courts. Mt. Healthy City School
Dist. Bd. of Educ. v. Doyle, 50 L.Ed.2d at 478; City of Kenosha
v. Bruno, 412 U.S. 507, 511, 37 L.Ed.2d 109, 115 (1973);
Louisville and N.R. Co. v. Mottley, 211 U.S. 149, 152, 53 L.Ed. ~
126, 127 (1908); Cameron v. Hodges, 127 U.S. 322, 326, 32
L.Ed. 132, 134 (1888); Mansfield, C. & L. M. Ry. v. Swan, 111
U.S. 379, 382, 28 L.Ed. 462, 464 (1884); Turner v. President,
Directors and Co. of Bank of Amer., 4 Dall. 7, 8, (1799); Mor-
rison v. Morrison, 408 F. Supp. 315, 316 (N.D.Tex. 1976). Con-
sequently, the Court holds that, in the absence of plaintiff’s
showing that they are likely to succeed on their legal claims, any
losses or injuries sustained by them, however irreparable, do not
justify issuing a preliminary injunction.
3. Plaintiffs’ Injury Outweighs Defendant’s Injury
Because the fact of plaintiffs’ possible injuries alone cannot
warrant a preliminary injunction, there is no need for the Court
to consider or balance any possible injury to the defendant from
an injunction. |
4. No Disservice to the Public Interest
Because the plaintiffs have not shown that they are entitled
A-52
to a preliminary injunction, the Court need not consider
whether a preliminary injunction would result in a disservice to
the public interest. Instead the Court holds, that where there is
no clearly demonstrated legal justification for the Court to exer-
cise its jurisdiction and grant relief, the public’s interest under
the national system of federalism would be ill-served by failing
to observe the constitutionally-founded, limited jurisdiction of
federal courts.
CONCLUSION
In conclusion, the Court holds that plaintiffs have not
shown themselves entitled to a preliminary injunction; and that
defendant has demonstrated his right to summary judgment, as
a matter of law and in the absence of any genuine factual
dispute, concerning plaintiffs’ first two claims. Conseqtently, it
is now
ORDERED:
1. Plaintiffs’ motion for a preliminary injunction is denied.
2. Defendant’s motion for summary judgment on plain-
tiffs’ first two claims, concerning procedural due process for
property interest in their jobs, and stigmatization of their good
names and reputations, is granted.
3. Defendant’s motion for summary judgment on plaintiffs
third claim, concerning politically discriminatory discharge
violating First Amendment freedoms, is denied.
DONE and ORDERED at Jacksonville, Florida, this 20th
day of October, 1977.
/s/
Judge
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Copies:
Ben R. Patterson, Esquire
1215 Thomasville Rd.
Tallahassee, Florida 32303
Jack Skelding, Esquire
318 North Monroe Street
Tallahassee, Florida 32303
Welborn Daniel, Esquire
Post Office Box 189
Clermont, Florida 32711
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.