Appendix — Rockefeller v. Bever

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No. 83-2139 OCT 4 1994

ALEXANn

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IN THE SUPREME COURT OF THE UNITED STA

i} OCTOBER TERM 1983

JOHN D. ROCKEFELLER IV, individually

and as Governor of West Virginia,

Petitioner,

JOHN M. BEVER, et al.,

Respondents.

APPENDIX

TIMOTHY N. BARBER

12 Capitol Street

Charleston, WV 25301

(304) 343-7676

Counsel for Respondents

APPENDIX

TABLE OF CONTENTS

Appendix A: Opinion of

the United States Court

of Appeals for the Fourth

Circuit

Appendix B: District Court

Opinion Denying Petitioners'

Motions for Summary Judgement

Appendix C: Order of the United

States Court of Appeais for the

Fourth Circuit Denying a Rehearing

Appendix D:. Judgment Order of the

United States Court of Appeals for

the Fourth Circuit

Appendix E: Constitutional

Provisions and Statutes Involved

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

John M. Bever, Clearyl Davis,

John E. Ellifritt, Cecil Fling,

Drexeline Perrine, Francis D.

Radcliff, Robert W. Robinson,

Michael Shepherd, Larry Williams

and Larry W. Griffin, Appellees,

versus

Walter Gilbertson and

Charles L. Miller, Appellants,

and

John Gum, Wilton Williams,

individually and as

Commissioner of the West Virginia

Department of Highways; and

John D. Rockefeller, IV, —

individually and as Governor of

the State of West Virginia, Defendants.

No. 83-1791

John M. Bever, Clearyl Davis,

John E. Ellifritt, Cecil Fling,

Drexeline Perrine, Francis D.

Radcliff, Robert W. Robinson,

Michael Shepherd, Larry Williams

and Larry W. Griffin, Appellees,

atte

versus

John D. Rockefeller, IV., Appellant,

and

John Gum, Walter Gilbertson,

Wilton Williams, Charles L. Miller,

individually and as Commissioner

of the West Virginia Department

of Highways, Defendants.

Appeal from the United States District

Court for the Southern District of West

Virginia, at Charleston, Charles dH.

Haden, II, District Judge, 82-2506

Argued October 5, 1983

Decided January 11, 1984

Before WINTER, Chief Judge, HALL, Circuit

Judge, and HAYNSWORTH, Senior Circuit

Judge

Robert B. King (Rebecca A. Betts, King,

Betts & Allen on brief) for Appellant

John D. Rockefeller, IV; David P. Cleek,

Deputy Attorney General (Chauncey dH.

Browning, Attorney General; Edward W.

Eardley, Steptoe & Johnson on brief) for

Appellants Charles L. Miller and Walter

L. Gilbertson; Timothy N. Barber (Guy R.

Bucci on brief) for Appellees.

a2ie

HAYNSWORTH, Senior Circuit Judge:

In 1981, West Virginia's Department

of Highways allegedly was confronted with

the need to substantially cut its

expenditures. It chose to terminate the

employment of a large number of lower

echelon employees. According to

plaintifés, the sole or oprincipal

criterion for the selection of those to

be terminated was political party

affiliation. Loyal Democrats were to be

retained while Republicans and

Independents were to be terminated.

There are now pending in the

Northern and Southern Districts of West

Virginia a number of cases brought by

terminated employees of the Department of

Highways alleging that their terminations

were in violation of their constitutional

rights of free association. The

plaintiffs in this case are such

-3A-

terminated employees who worked under the

supervision of John Gum, County

Supervisor for the Department of Highways

in Doddridge County. The defendants are

Governor John D. Rockefeller, IV, Charles

L. Miller, Commissioner of West

Virginia's Department of Highways, Walter

Gilbertson, District Engineer of District

4 of the Department of Highways, Gum and

Wilton Williams, Chairman of Doddridge

County Democratic Executive Committee.

The amended complaint sought injunctive

relief, including reinstatement of the

plaintiffs to their former jobs, and

damages. Governor Rockefeller,

Commissioner Miller and District Engineer

Gilbertson were sued both in their

efficial and individual capacities, and

they claim qualified immunity from the

claim of damages against them personally.

The immunity claim was the basis of a

motion for summary judgment. The motion

-4A-

was denied by the district judge largely

on the basis that those defendants could

not reasonably have believed that a

political criterion for the selection of

those employees whose employment was to

be terminated was permissable under the

Constitution of the United States.

Those three defendants sought a

certificate by the district judge for a

permissable interlocutory appeal under 28

U.5.C.A. § i292(65). The district judge

refused such certificaation, whereupon

those three defendants filed notices of

appeal under 28 U.S.C.A. § 1291. The

question now before us, upon a motion to

dismiss the appeals, is whether these

appeals are within the collateral order

exception to the general rule that

appeals of right are allowable only from

final judgments.

-

As developed in Cohen v. Beneficial

«SA

Loan Corp., 337 U.S. 541, and subsequent

cases in the Supreme Court, an appeal

from an interlocutory order under § 1291

may be taken, if the interlocutory order

conclusively determines the question in

the trial court, resolves an important

question independent of the subject

matter of the litigation, is effectively

unreviewable on appeal from a final

judgment or so important that review

should not wait upon final judgment, and

presents a serious and unsettled question

upon appeal.

In Cohen itself, the plaintiffs were

small Shareholders who brought a

derivative stockholders' action within

the diversity jurisdiction of the federal

courts. The defendants, faced with the

prospect of large litigation expenses,

sought an order compelling the plaintiffs

to post security for them under a stat

(D

Statute which required the plaintiffs to

stAe

” Sa

reimburse the defendants for such

expenses in the event that the defendants

prevailed. The district court denied the

motion to compel the posting of such

security.

It is obvious that in Cohen, if an

immediate appeal was not available and

the case proceeded to final judgment, the

defendants would have lost irretrievably

the security they sought to gain by the

motion, and the purpose of the Statute

imposing the burden of costs upon the

losing plaintiffs would have been

Substantially frustrated.

Orders denying claims of absolute

immunity have been held within the Cohen

collateral order exception. In Helstoski

vy. Meanor, 442 U.S. 500 (1979), the claim

was one of immunity under the Speech and

Debate Clause. In Abney v. United

States, 431 U.S. 651 (1977), the claim

was one of immunity under the Double

7;

Jeopardy Clause, while in Nixon v.

Fitzgeraid, 457 U.S. 731 (1982), the

claim was one of absolute immunity for

the President of the United States.

Claims of absolute official immunity

are rightfully classified with claims of

immunity under the Double Jeopardy Clause

and the Speech and Debate Clause. In

each instance, an important aspect of the

absolute immunity with which the person

is clothed is that he not be put to trial

at all, and the right not ‘to be put to

trial at all is irrevocably lost if an

order putting such person to trial may

not be reviewed until after final

judgment.

The qualified immunity, with which

the three appellants are cloaked, is of a

lower order. It provides substantial

protection for a public official who acts

under circumstances in which a reasonable

person would believe that his conduct did

-8A-

not violate established constitutional

rights of another. That such a defendant

not be put to the trouble of defending

himself on the merits is also an aspect

of immunity. Indeed, in Harlow v.

Fitzgerald, 457 U.S. 800, the Supreme

Court sought to give additional

protection against being put to trial on

insubstantial claims * to persons

possessing qualified immunity. Tt

eliminated the subjective aspect of the

qualified immunity doctrine as

theretofore understood so that more

claims of qualified immunity could be

resolved on motions for summary judgment

before trial.

It is far from clear, however, that

an order denying a claim of qualified

immunity is within the collateral order

exception. While the Supreme Court in

Harlow v. Fitzgerald considered the

contours of qualified immunity, the case

-9A-

got there because the order in the

district court denied Harlow's claim of

absolute immunity. See, note ll, 457

U.S. at 806. In McSurely v. McClellan,

697 F. 2d 309 (D.C. Cir. 1982), the court

held that an order denying a claim of

qualified immunity was within the

collateral order exception, a position

with which a panel of this court (Judges

Hall, Murnaghan, and Haynsworth) differed

in an unpublished opinion in Benford v.

American Broadcasting Companies, I[Inc.,

(No. 83-1168, 1983).

Whatever the situation might be in

other circumstances, however, the

qualified immunity claimed by these three

appellants cannot prevent their being put

to trial. The plaintiffs seek equitable

relief as well as money damages, and the

appellants have no immunity from being

-10A-

put to trial on the equitable claims.*

They are the principal defenders of the

State's position. They will bear a major

responsibility for the outcome of the

1. Our dissenting brother suggests that

Governor Rockefeller and District

Engineer Gilbertson were not proper

parties to this action insofar as

injunctive relief is sought. If

reinstatement were the only equitaole

remedy sought, complete relief might be

odtainable if Highway Commissioner

Miller, or his successor, was the only

named defendant, but the plaintiffs also

seek an injunction prohibiting all

defendants from conspiring to violate

plaintiffs' constitutional right to be

free of discrimination in employment

based entirely upon political party

considerations. Commissioner Miller

serves “at the will and pleasure of the

Governor" W.Va. Code 6-7-2A, and is

vulnerable to pressure from the Governor.

Commissioner Miller is responsible for

"the selection, employment, and effective

Organization of all Commission personnel

--" W.Va. Code 17-2A-4. Doubtless it is

he who sets broad policy, but he may act

only through subordinates, such as

District Engineer Gilbertson, who either

makes specific personnel decisions within

the guidelines set by the Commissioner or

who, at least, may make recommendations

to the Commissioner. We conclude that

Governor Rockefeller and Engineer

Gilbertson are proper parties insofar as

injunctive relief is sought.

-~lla-

litigation and will be among the

Principal witnesses at the trial.

Whether or not they are immune from an

assessment of damages against them in

their individual capacities, the

litigation will demand their time and

attention. A present declaration of

immunity from damage claims cannot avoid

the diversion of their attention from

other official duties which the

litigation will occasion.

If the personal pocketbooks of the

three appellants are, cr may be, at risk,

the degree of their distraction from

other official duties may be greater than

it otherwise would be. Still, one would

Suppose that, if the risk of personal

liability were eliminated, the three, as

responsidle public officials, would give

the litigation all of the thought and

attention necessary adequately to protect

the interest of the state.

-12A-

ESR PNET EDS

The doctrine of qualified immunity

cannot protect a public official from a

claim of personal liability. It may

provide a means by which the litigation

may be terminated sooner than it

otherwise might be, and it provides the

official with substantive protection

against personal liability for official

wrongs other then a violation of

established constitutional rights. In

this case, fowever, a trial had been

scheduled, and, if these appellants had

nothing to do with the selection process

and bore no responsibility for it, as

they claim, they might have obtained a

favorable judgment on the claims against

them individually sooner by a trial on

the merits than by appellate litigation

of their immunity claims.

In these circumstances, the question

whether a denial of the immunity claims

is appealaple before trial and final

-13A-

judgment, would appear to have little

effect upon the willingness of

responsible persons to serve in public

office. That is one of the reasons for

the existence of the doctrine of

qualified immunity, and a claim of

personal liability on the part of a

public official should be adjudicated

with reasonable promptness. Here,

however, trial on the merits is at hand,

and the appellants can look forward to

prompt vindication of their positions if

they are correct in their claims that

they were not participants in the

selection process and were not otherwise

responsible for it.

If the question of qualified

immunity is still in the case after final

judgment in the district court, it may

readily be reviewed in an appeal from

that judgment.

Generally, in the Supreme Court the

-14A-

te atti) eB tet B ne

collateral order exception has been

confined to situations in which the

claimed right would be lost or deprived

of its practical value if immediate

review is not provided. This is true in

absolute immunity cases in which the

defendant is entitled not to be put to

trial. Other preliminary orders of great

importance to the litigants have been

held not within the doctrine. Pretrial

discovery orders may not be reviewed

before final judgment. Cobbledick v.

United States, 309 U.S. 323 (1940), and

United States v. Ryan, 402 U.S. 530

ta97i). oa order denying class

certification is not within the doctrine.

Coovers & Lybrand v. Livesay, 437 U.S.

463 (1978). Nor is an order refusing to

disqualify counsel. Firestone Tire &

Rubber Co. v. Risjord, 449 U.S. 368

(1981). Litigants may desire early

appellate rulings on important orders of

-15A-

that sort, but the collateral order

exception is a narrow one and reserved

for rare cases. Such a one was

Mercantile National Bank. v. Langdeau,

371 U.S. 555 (1963), where the question

was one of venue in protracted litigation

against two national banks which asserted

a right not to be put to trial at all in

the court in which * the action had been

brought. The question of venue is

Subject to appellate review after final

judgment, but the court was moved by the

specter of the great waste that would

occur if the extensive litigation were

permitted to proceed in the wrong court.

There are no comparable

circumstances here. There is no problem

of jurisdiction or venue in the district

court. The trial must oroceed in any

event, and the question of qualified

immunity is readily subject to appellate

review after final judgment.

-16A-

In the lower federal courts, orders

denying claims of absolute immunity have

been held appealable before trial.

Chavez v. Singer, 698 F. 2d 420, 421

(lOth Cir. 1983); Forsyth v. Kleindienst,

599 F. 2d 1203, 1208-1209 (3d Cir. 1979),

cert. denied, 453 U.S. 913 (1981)

(Forsyth I); Forsyth v. Kleindienst, 700

F. 2d 104 (3d Cir. 1983) (Forsyth II. In

Forsyth I, an interlocutory appeal from

an order denying a claim of qualified

immunity was not allowed, and the court

said it was not even seriously contended

that those orders met the Cohen

requirements. In Forsyth II, the

Majority expressed skepticism about the

appealability of the denial of summary

judgment on the claim of qualified

immunity referring to the Supreme Court's

decision in Harlow v. Fitzgerald and the

decision of the United States Court of

Appeals for the District of Columbia

-17A-

Circuit, mentioned above, in McSurely v.

McClellan. By eliminating the subjective

component of the qualified immunity

claim, the Supreme Court clearly intended

to facilitate disposition of claims of

qualified immunity on summary judgment

motions. but one must read much into that

Opinion to conclude that the Supreme

Court also intended that denials of such

motions should be immediately appealable.

If, however, it may ultimately be

determined that such an order is

immediately appealable if the effect of

the immunity claim would be to terminate

the litigation insofar as the immune

defendant is concerned, this case is

different. Partial summary judgment for

these appellants on the damages claims

against them individually would not

terminate the litigation nor avoid the

necessity for atrial and active

participation in it by these appellants.

-18A-

Under these circumstances, we cannot read

Harlow v. Fitzgerald as a basis for a

conclusion that this denial of summary

judgment meets the Cohen requirements.

IT.

There is another reason for

dismissal of this appeal as premature.

One of the requirements for

immediate appealability of a collateral

order under the Cohen doctrine is that it

presents a serious and unsettled question

of law. A public sfficial, clothed with

qualified immunity, is not required to

anticipate future development of

constitutional doctrine, but he is

required to respect the established

constitutional rights of others. His

gualified immunity is not available to

him if he does not do that.

In 1981, when these r?laintiffs were

terminated as employees of the Department

of Highways, their constitutional right

-19A-

AD a rte? OA ON Ea AO. NO ee Pe

not to be discharged solely because of

their political affiliation was clearly

established. Sareag ©. Burns, 427 U.B8s

347 (1976), and Branti v. Finkel, 445

U.S. 507 (1980). The plaintiffs were not

confidential employees nor policy makers.

Indeed, there is no contention here that

they are not the kind of employees who

enjoy the protection of the Elrod-Branti

principle.

Instead, the defendants contend that

their discharge was not solely because of

the lack of affiliation with the

Democratic Party. It was for economic

, reasons, they say.

We may accept the fact that in 1981

fiscal considerations made a reduction in

force in the Department of Highways

necessary or appropriate. The decision

that a reduction in force is necessary,

however, was only a backdrop. It did not

identify those employees to be terminated

-20A-

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or those to be retained. It only set the

stage for those specific employment

decisions which would identify those

employees who were to be released and

would effect their actual terminations.

The Elrod-Branti principle fully

protected all of the lower echelon

employees of the Department as their

superiors approached the task of

implementation of the reduction in force.

It is true that in both Elrod and

Branti the patronage system had been

operating to procure the discharge of

members of an unfavored party to replace

them with members of a favored party.

Proof that the discharges were solely for

political purposes may be facilitated

when there are immediate replacements by

members of a favored party, but the

Constitution protects the rights of

existing employees against discharge

solely for political reasons. If, in the

-21A-

implementation of a reduction in force,

those employees to be released are

selected not on the basis of the quality

of thelr work, their productivity or

their faithfulness to their jobs but

solely on the basis of their political

affiliations. the Elrod-Branti principle

is clearly applicable. The plaintiffs’

allegations bring them readily within the

principle.

The defendants place major reliance

on Wren v. Jones, 625 F. 2d 1277 (7th

Canes. aeee), But that case is of no

assistance to them. In that case, a

court had ordered the reinstatement of a

number of Democrats who had _ been

discharged solely for political reasons.

The affected departments of the State of

Illinois discharged a number of

Republicans in order to make room for the

Democrats to be reinstated.

Considerations of fiscal limitations and

-22A-

efficiency militated strongly against the

employment of both groups. In that case,

however, the pool from which the

employees to be terminated were ae

was composed entirely of Republicans.

Republican affiliation was not the

criterion of selection, and it was

properly concluded that economic

necessity was the reason for their

termination.

Wren is thus nothing like this case

where the allegation is that party

affiliation was the sole criterion by

which these plaintiffs were selected for

discharge. At least so far, this is not

a mixed motive case. Economic

considerations may have occasioned the

reduction in force. They did not

dictate, or even address, the political

criterion by which those to be discharged

allegedly were chosen.

-23A-

III.

Because this collateral order is not

within the Cohen exception to the rule

that appeals of right may be taken only

from final judgments, the appeal is

dismissed.

APPEAL DISMISSED

-24A-

i Fee! ee

HALL, Circuit Judge, dissenting:

I cannot accept the majority's

dismissal of these appeals as

interlocutory. In concluding that

pretrial review is unavailable, the

majority has ignored both the facts of

this case and applicable law. In my

view, the district court's order, denying

appellant's claims of qualified immunity,

is precisely the type of preliminary

ruling which necessitates immediate

appellate review. For this reason, I

must dissent.

This case is one of nine civil

actions currently pending against West

Virginia's Governor Rockefeller,

Department of Highway (DOH) Commissioner

Miller, and various DOH District

Engineers for their alleged participation

in a conspiracy to terminate some sixty

former DOH employees for political

reasons. In this case, as in the others,

plaintiffs are Republicans and

Independents, who seek to hold Governor

Rockefeller, a Democrat, and other state

officials personally liable for monetary

damages. The state defendants deny that

they are liable for damages because of

their entitlement to qualified or "good

faith" immunity.

In the proceedings below. Governor

Rockefeller, Commissioner Miller, and

District Engineer Gilbertson moved for

Summary judgment based on their official

immunity. The parties agree that the

matter was ripe for summary disposition

and that no facts regarding the immunity

claim remain unresolved. According to

the uncontradicted evidence neither

Governor Rockefeller nor the other two

appellants were personally involved in

the selection of these nine plaintiffs

for termination. Moreover, the record

-26A-

also clearly establishes that none of the

three at any time considered, suggested,

authorized, or otherwise intended that

the terminations be politically

motivated. Finally, as plaintiffs

concede, it is clear that the

terminations arose as a result of an

economically necessitated reduction in

1/ Notwithstanding these

force.

undisputed facts, the district court

denied the motions for summary judgment

and these appeals followed.

In my view, the majority erroneously

holds that the appeals from the denial of

summary judgment must await the outcome

1/ The record in this case

demonstrates that because of the state's

fiscal crisis in late 1980, over 1,500

DOH employee positions were eliminated in

1981, the year of plaintiff's

terminations. As of now, more than 2,600

DOH employees have lost their jobs since

the end of 1980. This represents an

elimination of approximately one-third of

the DOH workforce as it existed in late

1980. -27A

of the trial. Under 28 U.S.C. § 1291

only appeals from final judgments are

ordinarily permitted. Nevertheless, as

the majority notes, an exception to this

general rule, known as the collateral

order doctrine, has been recognized by

the Supreme Court in Cohen yv. Beneficial

Industrial Loan Corporation, 337 U.S. 541

(1949), and other cases. To-fall within

the collateral order exception, the order

appealed from must: (1) conclusively

determine the disputed question; (2)

resolve an important issue completely

separate from the merits of the action;

(3) be effectively unreviewable on

appeal from a final judgment; and (4)

present a serious and unsettled question

On appeal. In the companion cases of

Nixon v. Fitzgerald, 457 U.S. 731 (1982),

and Harlow v. Fitzgerald, 457 U.S. $8s00

(1982), the Supreme Court recognized the

applicability of the collateral order

-238A-

doctrine to both absolute and qualified

immunity claims and the need _ for

pré-trial appellate review of the denial

of such claims. Other Circuit Courts,

applying Harlow, have affirmed the

appropriateness and need for immediate

review of official immunity claims.

Chavez v. Singer, 698 F. 2d 420, 421

(10th Cir. 1983); McSurely v. McClellan,

697 F. 24 309, 316 (Dec. Cir. 1982);

Forsyth v. Kleindienst, 599 F. 2d 1203,

1208-1209 (3d Cir. 1979), cert. denied,

453 U.S. 913 (1981) (Forsyth I); Forsyth

poesmmaener, 700 F. 246 104 (34 Cite.

1983) (Forsyth II). The majority,

however, has concluded that Harlow is not

controlling and that these appeals do not

meet the four criteria of the collateral

Order exception to 28 U.S.C. § 1291. I

disagree. In my opinion, if ever there

was a case which justified application of

Harlow and the collateral order doctrine,

-29A-

2/

this is certainly the one.

tz.

Official immunity has long been

recognized as a concept essential to the

effective functioning of government.

a/ The majority's reference to the

unpublished decision in Benford vy.

American Broadcasting Companies, Inc., et

al., No. 83-1168 (4th Cir., April ll,

1983), in no way deters me from finding

Harlow applicable in this instance. The

two cases are factually distinct. In

Benford, we simply held that an immediate

appeal of the district court's order

denying summary judgment was not

warranted when the qualified immunity

defense was not finally determined and

where the disappointed movants could

Still present facts at trial in support

of their claim to immunity. In that

case, the district court ruled that the

Congressional staff defendants had acted

beyond the scope of their authority and,

therefore, lacked standing to assert a

qualified immunity defense; however, in

deciding against the Congressional

defendants, the district court left open

the possibility that they could prove

certain facts at trial which would

entitle them to qualified immunity.

Here, on the other hand, all of the facts

pertaining to the qualified immunity

defense asserted by Governor Rockefeller

and the other state officials have been

Presented and the district court has

conclusively resolved their immunity

claims against them.

-30A-

Butz v. Economou, 438 U.S. 478 (1978).

As noted by the Supreme Court in Scheuer

v. Rhodes, 416 U.S. 232, 239 (1974),

officials, including a state's chief

executive officer and his aides, must be

permitted “to perform their official

functions free from the threat of suits

for personal liability." The Supreme

Court in Harlow expressed its frustration

with the increasing burdens imposed on

public officials in defending agaiast

"insubstantial claims" and made clear

that suits brought against public

officials for alleged constitutional

torts should be screened at the earliest

stages of litigation:

In Butz, we admonished

that "insubstantial" suits

against high public officials

should not be allowed to

proceed to trial. 438 U.S., at

507. . . We reiterate this

admonition. Insubstantial

lawsuits undermine the

effectiveness of Government as

contemplated by our

constitutional structure, and

-31A-

Firm application of the

Federal Rules of Civil

Procedure" is fully warranted

in such cases. Id., at 508.

457 U.S. at » 402 S.CR. Ot 2IZFs Be

35.

Accordingly, the Supreme Court

departed from the earlier requirement

that in order to be entitled to qualified

immunity an official must show both

objective and subjective good faith.

Under Harlow, it is sufficient for

purposes of good faith immunity if the

conduct in question did not violate

clearly established rights which a

reasonable person would have known. In

recasting this standard, the Harlow Court

noted:

[o3% cannot be disputed

seriously that claims

frequently run against the

innocent as well as the guilty

- at a cost not only to the

defendant officials, but to the

society as a whole (footnote

omitted). These social costs

include the expenses of

-32A-

litigation, the diversion of

official energy from pressing

public issues, and the

deterrence of able citizens

from acceptance of public

office. Finally, there is the

danger that fear of being sued

will "dampen the ardor of all

but the most resolute, or the

most irresponsible (public

officials), in the unflinching

discharge of their duties.”

Gregiore v. Biddle, 177 F. 2d

579, SSL (CA 2 £969), Cece.

denied 339 U.S. 949 (1950).

457 0.8. at » 1802 SiGe. @48 27 se~

As the District of Columbia Circuit

held in McSurely, the Supreme Court in

Harlow “consciously sought to facilitate

Summary disposition of insubstantial

claims against governmental officials.

Consequently, . . . appellate review of a

denial of a motion for summary

disposition must be available to ensure

that government officials are fully

protected against unnecessary trial under

qualified immunity on the same basis as

for absolute immunity.” 697 F. 2d at

316. Similarly, the Third Circuit in

-33A-

ny

OOOO oor

Forsyth II, 700 F. 2d at 105, stated that

a claim of absolute immunity". oe

protects a right not to be subjected to

trial - a right that is lost if appellate

review awaits final adjudication. If

follows, therefore, that a stay (of the

trial) must be granted or the defendant

will be deprived of the benefits of

adjudication before trial."

The majority, however, rejects the

McSurely and Forsyth II analysis. Tt

stresses in Part I of its opinion that,

because plaintiffs seek reinstatement to

their former jobs as well as damages,

appellants must proceed to trial in any

event, and, therefore, the denial of

immediate appellate review does not

result in an irretrievable loss to

appellants. This mistaken view ignores

-34A-

the fact that neither Governor

Rockefeller nor District Engineer

Gilbertson are proper parties for

injunctive relief. 3/ Furthermore, the

majority's holding can easily lead to the

pernicious practice of tacking on a claim

for injunctive relief in order to avoid

summary judgment and force officials to

go to trial on meritless damages actions.-

In an appropriate case, the majority's

rationale might have merit. It can have

no application, however, in a case such

as this, where public officials are

contesting the right to be haled into

4/

Court in their personal capacities and

face trial on what is clearly an

3/

insubstantial claim for damages.>

3/ Under W.Va. Code § 17-2A-4

(1983), only Commissioner Miller has the

authority to order reinstatement.

“/ The majority concludes that it

makes no difference whether the personal

pocketbooks of appellants are at risk or

-35A-

a oS ee ne

(footnotes 4 and 5, continued)

not insofar as their distraction from

official duties is concerned. This

position, however, completely overlooks

the fact that an official being sued

personally for money damages may be

required to retain private counsel at his

own expense. Furthermore, the fear of

being sued and held personally liable for

damages is a far cry from a suit for

reinstatement or injunctive relief, which

public officials face regularly in the

course of performing their duties. As

the Supreme Court noted in Harlow, 457

U.S. at » 202 S.Ct... a6 27205 Bere

the threat of personal liability could

deter all but the most resolute or

irresponsible from discharging their

public duties, or even from being willing

to serve in public office.

A review of the current state of

the record quickly reveals the

insubstantiality of plaintiffs' claim.

Plaintiffs allege that appellants

participated in a scheme to oust them

from their jobs for political reasons, of

that appellants knew, or should have

known, that the terminations were illegal

and did nothing to prevent them. These

allegations, however, when submitted to

the test of appellants' motions for

summary judgment, are not supported by a

single shred of evidence, and the

majority cites none.

Appellants' affidavits substantiate

their defense that the terminations were

due to financial necessity and indicate

that none of the appellants had any

personal involvement whatsoever in

Plaintiffs' selection for discharge by

another defendant, County Supervisor John

-36A-

(footnote 5, continued)

Gum. That plaintiffs were discharged

solely by Gum, and without consultation,

is further supported by Gum's deposition,

in which he stated that he alone made the

decision to terminate plaintiffs.

None of plaintiffs' submissions, in

response to these affidavits and

supporting documentation, in any way

contradict appellants' evidence. In

fact, one of plaintiffs' submissions, a

deposition taken of Governor Rockefeller

in connection with other litigation,

reveals that political hiring and firing

was specifically disavowed by the

Rockefeller administration. It further

demonstrates that S$5% o£ the DOH

employees terminated in 1981 were persons

hired by Governor Rockefeller's

administration, while only 38-393 of

those terminated were persons hired by

the former Republican administration.

I am thus at a2 loss to understand

the district court's Fatienale FGF

allowing the damages claim to proceed to

trial on the ground that "“(p)laintiffs'

response . . . sets forth allegations

which if assumed to be true for the

puroses of this motion preclude summary

judgment." Under Fed. R. Civ. P. 56 (e),

once a motion for summary judgment is

made, "an adverse party may not rest upon

the mere allegations or denials of his

Pleading." The rule requires the

responding party to set forth specific

facts showing that there is a genuine

issue for trial or else have summary

judgment entered against him. The

district court's holding is incompatible

with Rule 56 and mandates trial where

there are mere allegations of politicaily

motivated terminations. By dismissing

these appeals, the majority seems to

Sanction this unwarranted practice.

-37A-

motivated at least in part by a fiscal

crisis, is open to serious question.

As recognized in Abraham v.

Pekarski, 537 F. Supp. 858, 863-64 (E. D.

Pa. 1982):

Few Supreme Court

decisions in recent years have

generated as much litigation

and controversy as have Elrod

and Branti. Moreover, because

of the lack of a majority

opinion in Elrod, a problem not

cured by Branti, the sweep of

Elrod and Branti has been

Subject to a good deal of

critical analysis seeking to

assess t Ar reach (footnotets

omitted).

The decisions of our own Court

reflect the continued uncertainty

surrounding Elrod's scope and

applicability. In Ramey v. Harber, 589

6/ Judge Aldisert of the Third

Circuit Court of Appeals made the

following observation in his concurring

opinion in Loughney v. Hickey, 635 F. 2d

1063, 1069 (3d Cir. 1980): "I suggest

that the various majority opinions in

both Elrod and Branti are not capable of

public comprehension."

-38A-

F. 24d 733 (4th Cir. 1978), cert. denied,

442 U.S. 910 (1979), this Court noted the

factual distinctions between that case,

which involved a newly elected sheriff's

failure to rehire deputies who had

actively campaigned against him, and the

Elrod case. Although the majority found

it unnecessary to determine the

applicability of Elrod to the Ramey

facts, it nonetheless expressed its

reservations in this regard: "The

district court's decision is supported by

the broad sweep of the Elrod plurality,

but there is considerable uncertainty as

to how a majority of the Supreme Court

would treat a failure to rehire and other

patronage practices." 589 F. 2d at

157, //

Other decisions in this Cir¢uit

which reflect the continuing uncertalnty

over the scope of Elrod include: Delong

v. United States, 621 F. 2d 618, 625 (4th

Cir. 1980) (Dumbauld, J., concurring:

-39A-

Courts in other Circuits have also

wrestled with the meaning of Elrod. In

spite of the majority's view that the

Seventh Circuit's decision in Wren yv.

Jones, 635 F. 24 1277 -(Jth Cir. 49805

cert. denied, - - , £02 - Oe Ge

129 (1981), is of no aid to appellants, I

find that case instructive. In Wren, the

Seventh Circuit was called upon to weigh

the fiscal interest of the State against

the Elrod rights of public employees in

Illinois. In this connection the Wren

Court held that "(i)n view of the

involuntary requirement that (certain)

(footnote 7, continued)

"appellant's situation does not fall

within Elrod. He has not been

discharged, or threatened with discharge.

He has simple been transferred. ..") and

Johnson yv. Bergland, 586 F. 2d 993, 996

(4th Cir. 1978) (Hall, J., dissenting:

", . . the majority's reliance on Elrod

v. Burns .. . iS misplaced; there the

infringement of first amendment rights

was direct and immediate, not indirect

and speculative.”)

-40A-

er aA Te ae ee

plaintiffs be reinstated, and of the

fiscal exigencies, .. . the State's

interest in maintaining prudent control

over the efficient use of their (sic)

resources outweighs any minimal impact on

the plaintiffs' right to political

association." Id. at 1287. (emphasis

added).

Whether or not Elrod applies in the

instant case, where a substantial portion

of the public empioyment sector had to be

permanently eliminated for legitimate

financial reasons, is, therefore, by no

means clear and settled. Except for

economic necessity, all of the plaintiffs

would have remained in their DCH jobs in

1981. Thus, the applicability of Elrod

to the facts of this case, and the

constitutional violations which

plaintiffs assert, are highly

Questionable and at the very least

justify pre-trial review by this Court

-41A-

under the collateral order doctrine.

IV.

The majority's denial of pre-trial

review under the circumstances presented

in this case flies in the face of Harlow

and conflicts with decisions by other

Circuit Courts which have allowed

immediate review of the denial of

official immunity claims. As a result,

appellants nave had their claims to

qualified immunity conclusively resolved

against them. They have irretrievably

lost whatever claim they may have to

official immunity, not only in this case,

but possibly in the eight other related

cases now pending against Governor

Rockefeller, Commissioner Miller, and

other District Engineers like Gilbertson.

Denying appellate review irreparably

harms not only these public officials,

but also the public at large and the very

concept of official immunity.

-42A-

For the foregoing reasons, I would

hold that we have jurisdiction of these

appeals under the collateral ovead

doctrine and would address the immunity

claims on their merits.

-43A-

APPENDIX B

Tm THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT

OF WEST VIRGINIA

CHARLESTON

JOHN M. BEVER, et al,

Plaintiffs,

vs. CIVIL ACTION NO. 82-2506

JOHN GUM, et al,

Defendants.

MEMORANDUM OPINION AND ORDER

This matter is before the Court upon

numerous dispositive motions by

Defendants Gum, Gilbertson, Miller? and

Rockefeller. Certain of the motions

challenge Plaintiffs’ original complaint,

which has since been superseded By the

amended complaint filed March 28, 1983.

Certain other motions have been rendered

moot by this Court's continuance of the

1 Defendants Gum, Gilbertson and

Miller are jointly represented.

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injunction hearing previously scheduled

for March 7, 1983. One motion is

unopposed. Remaining are four

dispositive motions post-dating the

amended complaint, which are opposed by

Plaintiffs. These latter four motions

substantially overlap; two were submitted

on behalf of Defendant Rockefeller, two

were submitted by the Defendants,

Gilbertson and Miller. Prior to

reviewing the substance of these motions,

the Court deems it appropriate to

Summarize the events of this litigation

from its inception to the present time.

Plaintiffs originally brought this

action in the Circuit Court of Kanawha

County, West Virginia. Subsequently,

Defendants filed a petition for removal”

2 All Defendants were at that time

jointly represented by the Attorney

General of West Virginia and counsel for

the state insurance carrier.

-45A-

tm

pursuant to 28 U.S.C. § 1441; Plaintiffs

responded by moving to remand the case

back to Kanawha County. By Order entered

November 17, 1982, this Court held that,

Since the action had been properly

removed under the provisions of 28 U.S.C.

§ 1446, and since federal question

jurisdiction existed, the Court had no

discretion to remand. Discovery then

commenced in anticipation of the March 7,

1983, injunction hearing.

Redress is sought in this action for

the alleged deprivations of Plaintiffs'

right to free political association and

affiliation, which they contend occurred

under a system of political patronage in

effect within the Department of Highways

(DOH), and specifically in Doddridgse

County, West Virginia. The alleged

"political firing" of the ten Plaintiffs,

all registered Republicans, was said to

have been perpetrated by Defendants under

-46A-

the democratic administration of West

Virginia Governor John D. Rockefeller,

E¥x Three of the remaining Defendants,

John Gum, Walter Gilbertson and Charles

L. Miller, were supervisory officials of

the DOH during the period in question;

Defendant Wilton Williams was democratic

committee chairman of Doddridge County,

West Virginia, the situs of Plaintiffs'

employment.

This action was brought pursuant to

the provisions of Title 42, United States

Code, Sections 1983 and 1985, and under

the authority of Elrod v. Burns, 427 U.S.

347 (1976) and Branti v. Finkel, 445 U.S.

507 (1980). Plaintiffs alleged in their

complaint two alternative theories of

liability: (1) that all Defendants

participated directly in a conspiracy to

deprive them of their civil rights;

and/or (2) that the Defendants

Gilbertson, Miller and Rockefeller

-47A-

have known" of the alleged

unconstitutional conduct.

Defendants answered the complaint,

denying unlawful conduct and

affirmatively asserting both their

official immunity and their good faith in

acting as officers of the state. .ne

M 4 ~ mia 4 M =

motion. orior to the scheduled prehearing

conference, was nevertheless considered

by this Court in anticipation of the

determined, and so informed the parties

on March 2, 1983, that under the &

Amendment to the United States

Constitution and under Edelman v. Jordan,

415 U.S. 651 (1974), Alabama v. Puch, 438

3

Wilton Williams, however, was not

a state employee and thu could assert no

immunity Or good faith defenses.

b48A-

. 781 (1978), and Quern v. Jordan, 440

U.S. 332 (1979), Plaintiffs were

preciuded from obtaining injunctive

relief in the form of back pay from the

state officials in their official

capacities.’ Plaintiffs were then given

the option of (a) proceeding against

Defendants on March 7 solely to determine

their entitlement to prospective

injunctive relief, i.e., reinstatement,

or (bd) of amending their complaint to

replace their back pay request with a

prayer for money damages in that amount

: eat 5

from Defendants as individuals.

. This decision was made prior ‘to

the issuance of the West Virginia Supreme

Court of Appeals' decision in Martin v.

West Virginia Board of Regents, No. 15433

(June 30, 1983). 2

The complaint as originally filed

sought only injunctive relief: That is,

retrospective relief in the form of back

pay; and prospective fr

of reinstatement to thel

positions.

Plaintiffs chose to amend their

complaint.

The motions of Defendants Gum,

Gilbertson, Miller and Rockefeller in

their individual capacities for judgment

on the pleadings are based upon the

character of the relief requested in

Plaintiffs' original complaint. While

Defendants ‘as individuals may have been

entitled to partial judgment on the

pleadings had the complaint not been

amended, since the injunctive relief

sought was recoverable merely from

Defendants as State officials, because

the Plaintiffs' claim now seeks money

damages from Defendants, Defendants'

motions are moot and, therefore, must be

denied. See Burt v. Board of Trustees,

521 F. 2€ 1201 (4th Cir. 1975); Miller v.

Board of Education of Ctv. of Lincoln,

450 F. Supp. 106 (S.D. W.Va. 1978).

Those issues revolving around

-50A-

Plaintiffs' original prayer for relief

were, as noted, heard by the Court at a

prehearing conference conducted on March

2, 1983. Because Plaintiffs opted at

that time to amend the complaint, this

Court ordered the March 7, 1983, hearing

continued and consolidated with the

August 22, 1983, trial on the merits. By

doing so, the Court thus rendered moot

Defendants' motions for continuance and

consolidation.

One other motion pre-dates

Plaintiffs' amended complaint, that is,

the motion of Defendant Rockefeller for

judgment on the pleadings and for summary

judgment. The bases for that motion are

trifold: First, that the complaint fails

to set forth Plaintiffs' allegations with

the requisite particularity; second, that

the record does not support the charges;

and third, that Defendants are entitled

to judgment because of their official

-51A-

qualified immunity. The Court is of the

Opinion to deny this motion, primarily

because the pleading and immunity issues

and the discussion of the merits are

addressed in subsequent motions

post-dating the amended complaint. °®

Remaining for decision, then, are

six dispositive motions which post-date

the amended complaint. Two motions filed

on behalf of Defendants Gilbertson and

Gum parallel two filed by Defendant

Rockefeller; each have moved (1) for

dismissal of Plaintiff, Drexelene

6 The pleading issue is raised in

Defendant Rockefeller's motion to dismiss

the amended complaint and the motion of

Defendants Gilbertson and Gum _ for

judgment on the pleadings and for summary

judgment; the immunity issue is addressed

in the subsequent motions by Defendants

Gilbertson, Millier and Rockefeller for

Summary judgment based upon official

immunity. That portion of Defendant

Rockefeller's motion which is concerned

with the merits is considered infra

together with Defendants Gilbertson and

Miller's motion for judgment on the

pleadings and for summary judgment.

-52A-

Perrine, and (2) for suamary judgment

based upon official immunity. In

addition, Defendant Rockefeller has, as

noted, moved for dismissal of the amended

complaint, a motion which presents

essentially the same allegations as

Defendants Gilbertson and Miller's motion

for judgment on the pleadings and for

summary judgment. The motion for

dismissal of Plaintiff Perrine is

unopposed by Plaintiffs, and, therefore,

may be granted without further

discussion. The balance of the

Gispositive motions, are, however,

opposed by Plaintiffs and memoranda in

response thereto, supplemented by

Plaintiffs' counsel's affidavit’ have

been submitted.

7 this affidavit is the subject of a

motion to strike by Defendant

Rockefeller. That motion will be

addressed below.

-53A-

Le Defendant Rockefeller's

Motion to Dismiss the Amended

Complaint and Defendants Gil-

bertson and Miller's Motion

for Judgment on the Pleadings

and for Summary Judgment

These dispositive motions, although

variously styled, present essentially the

same arguments, that is, insufficiency of

the pleadings, and failure to state a

claim. In addition, Defendant

Rockefeller asserts that injunctive

relief is inappropriate in this case and

that, in any event, injunctive relief

against him as Governor of West Virginia,

is precluded both on the grounds of

immunity and because he is not a proper

party to afford Plaintiffs such relief.

Defendants' argument relating to

insufficiency of the pleading is based

primarily upon the degree of

particularity with which Plaintiffs have

Supported their claims through factual

allegations in the complaint. In support

-54A-

1 wl aL NA lik ne edited apie luli Phere datidire

of this argument, Defendants point to two

specific defects: First, that the

conspiracy claim failed to allege with

particularity any "overt act" which would

indicate Defendants actually participated

in a conspiracy; and second, that

Plaintiffs' "knew or should have known"

claim is supported only by conclusory

allegations, which indicate that

Plaintiffs rely solely upon the doctrine

of respondeat superior for their

recovery.

In the Court's opinion, Plaintiffs

Support both their theories of liability,

i.e., the conspiracy claim under 42

U.S.C. § 1985 (3) and the "knew or should

have known claim" under Section 1983, by

detailed allegations. °® The complaint

describes the political history of the

8 Four pages of the complaint are

devoted to the explication of facts

relied upon for relief by Plaintiffs.

-55A-

DL iy At atte the

DOH, the chronology and character of the

Defendants' service with State

government, the relationships of the

Defendants with each other and with the

Plaintiffs, the opposing party ideologies

of Plaintiffs and Defendants, the details

of Plaintiffs' employment history and

their terminations, a statistical survey

of employment practices of the Defendants

with the DOH relative to the hiring of

Democrats and Republicans, the alleged

power of Defendants Gilbertson, Miller

and Rockefeller to control discriminatory

practices, their alledged knowledge of

such practices, and their alleged intent

to continue, and/or failure to prevent

such practices. (Complaint, Paragraphs

3-18).

Defendants correctly argue that

civil rights pleadings must set forth

with particularity those facts upon which

the pleader relies for relief. United

-56A-

ee

Black Firefighters of Norfolk v. Hirst, }

604 F. 2d 884 (4th Cir. 1979); Picking v. i

State Finance Corporation, 332 F. 2d 1399

(D. Md. 1971) affirmed 450 F. 2d 881 (4th

Cir. 1971) cert. denied 405 U.S. 1048; 2A

Moore's Federal Practice, §8.17(5) at

8-182 (1979). The purpose of such a

requirement, however, is not. to require

Plaintiffs to plead all of their evidence

but merely to provide the Defendants with

facts sufficient to apprise them of the

nature of the charges in order that they

may adequately plead and defend the

cause. Picking v. State Finance

Corporation, supra; Vasquez v. Ferre, 404

F. Supp. 815 (D. N.J. 1975); Jordan v.

Wolke, 460 F. Supp. 1080 (E. D. Wis.

1978). Plaintiffs need not plead

evidentiary facts in the complaint. E.g.

School District of Kansas City, Missouri

v. State of Missouri, 460 F. Supp. 421

(W.D. Mo. 1978); Yates v. Mahogony

-57A-

Ass'n., 129 F. 2d 227 (3d Cir. 1941).

Pleadings are to be judged by

Substance, rather than by form, to

facilitate the fair and just resolution

of controversies between litigants; they

should not be construed to raise barriers

which prevent the achievement of that

end. Matz v. Grasselli Chemical Co., 303

U.S. 197 (1938); Conley v. Gibson, 355

5.8. 4l (1957). In Ratcliffe v.

Insurance Company of N. America, 482 F.

Supp. 759 (E. D. Pa. 1980) the court was

presented with the precise argument being

made by Defendants here, i.e., that

because civil rights cases require

pleadings be made with factual

specificity, Plaintiffs' claim should be

dismissed. The court stated there that

even though certain portions of the

complaint were cast in conclusory

language, where other sections alleged

discriminatory acts with sufficient

-58A-

specificity to meet the requirements of

Rule 8, Federal Rules of Civil Procedure,

and to give adequate notice of the charge

to be defended, Defendants' motion to

dismiss the complaint would be denied.

Similarly, in School District of

Kansas City, Missouri v. State of

Missouri, supra, the complaint was held

reviewable under the provisions of Rule

8(a) requirements, not against some

9

stricter standard. The Court held there

that the complaint was sufficient when it

9 This Court is of the opinion that

those cases holding that greater

specificity is required in civil rights

complaints than in other types of

complaints are not altering the basic

rationale behind Rule 8, but are merely

acknowledging the necessity for

protection of Defendants' right to be

adequately advised of the charges against

him in an area of law wherein conclusory

allegations provide the potential for

abuse of the judicial process. The

requirements of Rule 8(a) incorporate the

rules of notice pleading, and are

accorded a liberal construction. Conley

v. Gibson, supra.

-S9A-

élleged that defendants transferred

students for purposes of segregation,

discriminated in employment, prevented

changed in district boundaries which

would have reduced segregation, and

failed to correct the effects of pre-1954

segregation. The allegations set forth

in Plaintiffs' complaint here are no less

specific than those found sufficient in

School District, and the Court would

find, therefore, that the complaint was

pleaded with sufficient particularity.

The Court's ruling just stated

applies to both the "knew or should have

known" claim and the conspiracy claim.

Defendants argue that the conspiracy

claim is defective as failing to allege

an “overt act"; however, the Court deems

that allegation in which Plaintiffs state

they were terminated by reason of their

political affiliation to meet that

-60A-

requirement specifically.10/ In reviewing

the sufficiency of a complaint alleging

conspiracy, the Court must take

cognizance of the fact that Plaintiffs'

access to specific facts surrounding a

civil rights conspiracy is often limited;

therefore, a certain degree of liberality

in construction is warranted,

particularly with regard to those

allegations concerning combination of the

conspirators. Vasquez v. Ferre, supra.

10 DeVitt and Blackmar defines an

"overt act” as:

"Any act knowingly committed by one

of the conspirators, in an effort to

effect or accomplish some object or

purpose of the conspiracy. . . . It may

be as innocent as the act of a man

walking across the street, or driving an

automobile, or using a telephone. It

must, however, be an act which follows or

tends toward accomplishment of the plan

or scheme, and must be knowingly done in

furtherance of some object or purpose of

the conspiracy. .. ."

2 Devitt and Blackmar, Federal Jury

Practice and Instructions, § 27.07 at 22

(1977).

-61A-

5

t

i

i

:

The complaint is sufficient when it

otherwise states a claim upon which

relief can be granted.

Having found the complaint filed

herein to be sufficiently specific to

inform the Defendants of the charges

which they are to defend, the Court now

proceeds to determine che issue of

whether a claim has been stated.

Defendants do not seriously contend that

political discrimination provided no

basis for a cause of action in this

Court; they could hardly do so in light

of Elrod v. Burns, supra, and Branti v.

Finkel, supra. Their argument, instead

pivots around two supplemental

contentions: (1) That because the

pleadings are nonspecific as to

particular actions taken by each

Defendant, the Court can only conclude

that Plaintiffs' theory of liability

rests upon the doctrine of respondeat

-62A-

superior; 11/and (2) That, in the absence

of such specific allegations, Defendants'

averments of good faith should permit the

Court to award Defendants judgment on the

merits. The Court is not persuaded that

Plaintiffs' complaint is deficient for

either reason.

With regarac to those contentions

addressed to the merits, the Court would

note that the parties have engaged in

extensive discovery during the pendency

of this action. In their second

argument, Defendants have not made

reference to the record in any

comprehensive fashion to support their

position that summary judgment on the

merits is appropriate. Had they done so,

the Court believes that material issues

11 Plaintiffs cannot base a civil

rights claim upon the theory of

respondeat superior. Vinnedge v. Gibbs,

arte rr

550 F. 2g 926 (4th Cir. 1977).

-63A-

of fact would be shown in dispute. The

complaint is not deficient for failing to

overcome Defendants' allegations of good

faith. Indeed, the United States Supreme

Court held recently in Gomez v. Toledo,

446 U.S. 635 (1980) that plaintiff need

not even allege bad faith in his

complaint, that good faith is merely a

matter of defense to be proved or

disproved at trial. Clearly, then,

Defendants' second argument must fail as

a basis for dismissal of this action.

Defendants' first argument premises

upon a finding by this Court of

insufficient particularity in the

pleading. Since the Court has determined

otherwise, the sole question remaining is

whether proper theories of liability have

been asserted. To establish a conspiracy

claim under Section 1985(3), Plaintiffs

must allege four elements, that is:

1. That Defendants did conspire;

-64A-

2. For the purpose of depriving,

either directly or indirectly, any person

or class of persons of the equal

protection laws, or of equal privileges

and immunities under the laws;

3. That one or more of the

conspirators did, or caused to be done,

any act in furtherance of the object of

the conspiracy, whereby another was

4(a). Injured in his person or

property, or

4(b). Deprived of having and

exercising any right or privilege of a

citizen of the United States. Griffin v.

Breckenridge, 403 v0.8. 88 (1971).

Brekenridge involved an alleged

deprivation of the black plaintiffs'

right to free speech, assembly and

association; the United States Supreme

Court held these allegations supported

the requisite animus to deprive

plaintiffs of equal enjoyment of a legal

right so as to state a claim under

-65A-

Section 1985(3). Although Breckenridge

involved allegations of invidious racial

discrimination, a Section 1985 action may

properly be based upon political

class-based animus, as indeed, plaintiff

did in Elrod. See also, Kimble v. D. J.

McDuffy, Inc., 648 F. 2d 340 (Sth Cir.

1981); Hampton v. Hanrahan, 600 F. 2d 600

(7th Cir. 1979) reversed in part on other

grounds 446 U.S. 754, rehearing denied

448 U.S. 913; Gibbins v. Bond, 623 F.

Supp. 845 (W.D. Mo. 1981) affirmed 668 F.

2d 967 (8th Cir. 1981). Cf., Marino v.

Bowers, 657 F. 2d-1363 (3d Cir. 1981).

“Since Plaintiffs have alleged facts

which, if assumed to be true, allege each

element of a cause of action under

Section 1985(3),-° it is clear that a

12 plaintiffs have alleged (1) a

conspiracy; (2) their membership in a

class of persons deprived of equal

protection of the laws; (3) an overt act;

and (4) injury to their property interest

in employment.

-66A-

claim upon which relief can be granted

has been stated in Plaintiffs'

; 13

complaint.

The cause of action previously

styled a “knew or should have known"

claim falls under the provisions of 42

U.S.C. § 1983. As Plaintiffs correctly |

argue, only two allegations are necessary

to state a claim under that section: (1)

That some person deprived Plaintiffs of a

federal right; and (2) That such person

acted under color of state or territorial

law. Gomez v. Toledo, supra. Elrod V.

Burns makes clear that the acts

complained of by Plaintiffs here

implicate both First and Fourteenth

Amendment rights. Defendants, with the

excepticn of Defendant Wilton Williams,

admit they were acting under color of

13 Plaintiffs might also establish

their conspiracy claim pursuant to the

provisions of Section 1983, under the

following analysis.

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State law when the alleged terminations

occurred. These facts are sufficient

without questions to state a claim

against Defendant Gum. However,

Defendants Gilbertson, Miller and

Rockefeller challenge the complaint as

insufficient based on Plaintiffs' alleged

failure to aver an “affirmative link"

indicating some personal involvement of

these Defendants in the acts complained

of. See Rizzo v. Goods, 423 U.S. 362

(1976). In the Fourth Circuit, such an

affirmative link may be demonstrated

through proof that a defendant “knew or

should have known" of the challenged

practice, but evidenced deliberate

indifference to Plaintiffs'

constitutional rights. Orpiano v.

Johnson, 632 F. 2d 1096 cert. denied 450

U.S. 929. Since, in an action under the

authority of Elrod and Branti,

Plaintiffs' prirma facie case does not

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4 $ ae We maT f

en a i NE ET ENS 29S MOT OE LIE IE |

————

include dis-proof of an independent

reason for the discharges, Mt. Healthy

City School District v. Doyle, 429 U.S.

274 (1976), Miller v. Board of Education

of County of Lincoln, supra, the

complaint herein, again assuming the

truth of the facts alleged for the

purposes of this motion, states a claim

upon which relief can be granted under

Section 1983. See also Brule v.

Southworth, 6ll1 F. 2d 406 (lst Cir.

1979); Tanner v. McCali, 625 F. 2d 1183

(Sth Cir. 1980) cert. denied 451 U.S. 907

(1981). In summary, both of the theories

of liability relied upon by Plaintiffs

properly assert the stated causes of

action.

One additional ground for dismissal

was raised by Defendant Rockefeller in

his motion, although not briefed by his

memorandum: That the injunctive relief

sought by Plaintiffs was not properly

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directed toward him as Governor. The

Court is of the opinion that this

argument lacks merit, in view of the

nature of the injunctive relief sought,

i.e., a permanent injunction against all

Defendants restraining them "from further

violating the rights and immunities

granted to Plaintiffs under the

Constitution of the United States of

America." (Complaint, p. 9 Paragraph a).

Such an injunction, if issued, would

appropriately be directed toward all

Defendants, including Defendant

Rockefeller. Neither is reinstatement an

inappropriate remedy. McMullan v.

Thornburgh, 508 F. Supp. 1044 (E. D. Pa.

1981) construing Johnson v. Bergland, 586

F. 2d 993, 995 (4th Cir. 1978). See also

Burns v. Elrod, 509 F. 2d 1133, 1135 (7th

Cie. i973). Therefore, this remaining

ground for dismissal must also be denied.

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II. Defendants' Motion for

Summary Judgment Based on

Official Immunity

Defendants Rockefeller, Gilbertson

and Miller urge the Court in this motion

to award them summary judgment based upon

the qualified immunity each possesses as

State officials. See Scheuer v. Rhodes,

416 U.S. 232 (1974). The basis for their

argument rests upon the United States

Supreme Court's recent holding in Harlow

v. Fitzgerald, a - , B82 Bs CE.

2727 (1982), wherein the Court held that

"Government officials performing

discretionary functions generally are

shielded from liability for civil damages

insofar as their conduct does not violate

clearly established statutory Or

canstitutional rights of which a

reasonable person would have known." Id.

oJike ow

<P T At

14/

at 2738. In their motion, Defendants

argue that the law governing "patronage

termination" is not clearly established,

and that, therefore, summary judgment is

appropriate. Specifically, Defendants

claim that Elrod and Branti preclude

relief unless political affiliation can

be shown the “sole cause" of Plaintiffs'

terminations, and that “sole cause" has

been accorded such varying

interpretations in subsequent decisions

that this Court must determine the

constitutional rights at issue not

"clearly established" for the purposes of

evaluating the propriety of summary

judgment under Harlow. Under this

theory, Defendants argue that, given the

necessity for a reduction in force which

14 The Harlow Court expressed no

view upon the effect of a defendant's

immunity defense in an action for

injunctive or declaratory relief. Id at

2739, n. 34.

«Tt

existed in fiscal year 1981, even if

Defendants terminated Plaintiffs because

of their affiliation with the democratic

party, the law which purports to preclude

this action was not_~ so "clearly

established" as to warrant continuation

of this action againt them. Thus

Defendants content they could not have

been expected to realize that, even if an

independent reason for terminating some

person existed, they would not be free to

select exclusively Democrats for that

purpose, since those firings could not

have resulted “solely" from political

considerations. The Court cannot agree

with this analysis.

Plaintiffs' constitutional right to

freedom from termination based upon

political affiliation or association has

been “clearly established" since the

Supreme Court's decision in Elrod. The

same constitutional principle was

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subsequently reaffirmed in Branti, prior

to Plaintiffs' terminations.2>/ This case

does not present the type of situation

involved in Procunier v. Navarette, 434

U.S. 555 (1978) where defendants were

held not liable for failure to foresee

the establishment of a constitutional

right prior to its enunciation.

Here, Defendants admit to actual

knowledge of the ban on politically

motivated terminations established in

Elrod.

The test which governs the

determination of whether a plaintiff's

13 the Supreme Court's subsequent

decision in Branti did revise the

standard for determining which public

employees were protected under Elrod;

however, that revision concerned whether

a plaintiff need establish his status as

a "non-policy making, non-confidential"

public employee. Defendants' argument is

not directed toward this issue, but

rather toward the role which political

considerations may properly play in the

decision to terminate an employee.

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le

First and Fourteenth Amendment rights

have been infringed by reason of a

"political firing” is as clearly

established as the right. This Court's

decision in Miller v. Board of Education

of County of Lincoln, supra, decided in

1978, applied the standard set forth in

Mt. Healthy City Board of Education vy.

Doyle, supra, a test which has uniformly

applied to patronage dismissal actions

since that time. Tanner v. McCall, 625

F. 2d 1183 (5th Cir. 1980) cert. denied

451 U.S. 907 (1981); Wren v. Jones, 635

F. 2d 1277 (7th Cir. 1981) cert. denied

454 U.S. 832 (1981); Nekolny v. Painter,

653 PF. 2d 1164 (7th Circ. 1981) cert.

denied 102 S. Ct. 1719 (1982); Barrett v.

Thomas, 649 F. 2d 1193 (5th Cir. 1981)

cert. denied 102 S. Ct. 1769 )1982);

McMullan v. Thornburgh, supra, Farkas v.

Thornburgh, 493 F. Supp. 1168 (E.D. Pa.

1980) affirmed mem. 633 F. 2d 209 (3d

-75A-

Cir. 1980) affirmed mem. sub nom appeal

of Farkas 642 F. 2d 441 (3d Cir. 1981);

Visser v. Magnarelli, 530 F. Supp. 1165

(N.D. N.Y. 1982); Abraham v. Pekarski,

537 F. Supp. 859 (E.D. Pa. 1982).1© the

Mt. Healthy test, reaffirmed in Givhan v.

Western Line Consol. School Dist., 439

U.S. 410 (1979), provides that, once

plaintiff has satisfied his prima facie

burden of demonstrating (1) that his

conduct was constitutionally protected;

and (2) that his conduct was a

"substantial" or "“motivating"™ factor in

the decision to terminate him, then

defendant must prove by a preponderance

of the evidence that the same employment

decision would have been reached as to

Plaintiff even in the absence of the

16 Although Sands v. Starke County

Board of Commissioners, 530 F. Supp. 712

(N.D. Ind. 1982) did not cite the Mt.

Healthy test in its decision, it did rely

upon the opinion in Wren v. Jones, supra,

which did apply Mt. Healthy.

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protected conduct, i.e., that plaintiffs'

political affiliation was not the "sole

cause" of his termination. There is no

inconsistency between "sole cause" and

the Mt. Healthy/Givhan standard which

might reasonably be viewed as the basis

for misconception of the scope of Elrod

and the public employees' first amendment

rights. If the sole cause of Plaintiffs'

terminations was a reason other than

political affiliation, Defendants

shoulder the burden of proof of that

reason once Plaintiffs have established a

prima facie case. The Court holds that

Plaintiffs' constitutional rights were

"clearly established" at the time of

17

their terminations, and thus that

Defendants are not entitled to summary.

17 The Court is further of the

opinion that, in view of the expansive

holdings in Elrod and Branti, Defendants

reasonably could not have permitted

political considerations to play a part

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Defendants are not entitled to summary

judgment on that ground.

Under Harlow, the ruling just stated

completes this Court's analysis of

Defendants' immunity defense for purposes

of the instant motion. "On summary

judgment, the judge appropriately (must)

determine. . . whether the law was

clearly established at the time an action

occurred. .. . If the law was clearly

(footnote 17, continued)

in the decision to terminate Plaintiffs

even if the meaning of “sole cause” was

not clearly established. Those decisions

plainly prohibit conditioning public

employment upon political affiliation.

If in fact Defendants chose to interpret

those decisions as permitting them to

select for discharge only those of the

opposing political party where 2

legitimate basis for discharging someone

existed, they did so at their own risk.

The Court cannot hold that a reasonable

government official would have made such

a determination in light of Elrod and

Branti. For this Court to award

Defendants summary judgment on the

proffered basis would strip public

employees of the protection afforded by

the Elrod and Branti holdings.

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established, the immunity defense

ordinarily should fail, since a

reasonably competent public official

should know the law governing his

conduct.” 102 S$. Ct. at 2739.

The sole remaining ground relied

upon by Defendants addresses itself to

the merits of the case. Defendants

argue, relying upon voluminous affidavits

and exhibits, that their good faith has

been conclusively established, and that

the Court may find as a matter of law

that they are, therefore, entitled to

judgment. Plaintiffs' response, however,

sets forth allegations which, if assumed

to be true for the purposes of this

motion, create genuine issues of material

fact precluding summary judgment. see

18 Defendants have challenged

Plaintiffs' response by moving to strike

the supporting affidavit of Plaintiffs'

counsel submitted therewith. However,

since this Court found it unnecessary to

base its ruling upon the affidavit, the

motion will be denied.

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Scheuer v. Rhodes, supra, at 249-250.

Accordingly, in view of the

foregoing, the Court hereby ORDERS:

l. The motion of Defendants Gum,

Gilbertson and Miller for judgment on the

pleadings is denied as moot;

2. The motion of Defendant

Rockefeller for judgment on the pleadings

is denied as moot;

3. The motion of Defendants Gun,

Gilbertson and Miller for continuance and

consolidation with trial on the merits is

denied as moot;

4. The motion of Defendant

Rockefeller for continuance and for

consolidation with trial on the merits is

denied as moot;

S. The motion of Defendant

Rockefeller for judgment on the pleadings

and for summary judgment is denied as

moot;

6. The motion of Defendants Gum,

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Gilbertson and Miller to dismiss

Plaintiff Drexelene Perrine is granted;

7. The motion of Defendant

Rockefeller to dismiss Plaintiff

Drexelene Perrine is granted;

8. The motion of Defendants

Gilbertson and Miller for judgment on the

pleadings and for summary judgment is

denied;

9. The motion of Defendant

Rockefeller to dismiss the amended

complaint is denied;

10. The motion of Defendants

Gilbertson and Miller for summary

judgment based on official immunity is

denied;

ll. The motion of Defendant

Rockefeller for summary judgment based on

official immunity is denied; and

12. The motion of Defendant

Rockefeller to strike the affidavit of

Plaintiffs' counsel is denied.

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The Clerk is directed to send a

certified copy of this Memorandum Opinion

and Order to counsel of record.

ENTER: 7/21/83

/s/ Charles 8. Haden, II

Charles 4. Haden I1,

Chief Judge

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APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 83-1790

John M. Bever, et al, Appellees,

versus

Walter Gilbertson and

Charles L. Miller, Appellants,

and John Gum, et al Defendants.

No. 83-1791

John M. Bever, et al, Appellees,

versus

John D. Rockefeller, IV, Appellant,

and %

John Gum, et al, Defendants.

ORDER

The appellants' petition for

rehearing and suggestion for rehearing en

banc has been submitted to the court. A

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Se

poll of the court was requested, and in

the poll there was an equal division of

the participating judges in regular

active service. Judges Russell, Widener,

Hall and Chapman voted in favor of en

banc rehearing while Judges Winter,

Phillips, Murnaghan and Ervin voted

against it. Judge Sprouse disqualified

himself.

The panel considered the petition

for rehearing and is of the opinion that

it should be denied.

It is ADJUDGED and ORDURED that the

petition for rehearing and suggestion for

rehearing en banc are denied.

Entered at the direction of Judge

Haynsworth for a panel consisting of

Judge Winter, Judge Hall, and Judge

Haynsworth.

For the Court,

/s/ William K. Slate, II

CLERK

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_ si“ ;.LCCtit_U.ULULUOidé4#(#4w#sdseeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

APPENDIX D

JUDGMENT

UNITED STATES COURT OF APPEALS

for the

Fourth Circuit

No. 83-1791

John M. Bever, Clearyl Davis,

John E. Ellifritt, Cecil Fling,

Drexelene Perrine, Francis D.

Radcliff, Robert W. Robinson,

Michael Shepherd, Larry Williams,

Larry W. Griffin, Appellees,

Vv.

John D. Rockefeller, IV, Appellant,

and

John Gum, Walter Gilbertson,

Wilton Williams, Charles L.

Miller, individually and as

Commissioner of the West Virginia

Department of Highways, Defendants.

Appeal from the United States

District Court for the

District of South Caroline.

This cause came to be heard on the

record from the United States District

Court for the District

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Se ee ee

of South Carolina.

On consideration whereof, it is now

here ordered and adjudged by this Court

that a certificate of probable cause to

appeal is denied, and the appeal is

hereby, dismissed.

/s/ William K. Slate, II

CLERK

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il i ak ata ata pes 1S

APPENDIX E

AMENDMENTS TO THE CONSTITUTION

9

(Amendment I)

(Freedom of Religion, of Speech,

and of the Press)

Congress shall make no law

respecting an establishment of religion,

or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of

the press; or the right of the people

peaceably to assemble, and to petition

the Goveenment for a redress of

grievances.

(Amendment IX)

(Reservation of Rights of the People)

The enumeration in the Constitution,

of certain rights, shall not be construed

to deny or disparage others retained by

the people.

(Amendment XIV)

Section l.

(Citizenship Rights Not to

Be Abridged by States)

All persons born or naturalized in

the United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State where they

reside. No State shall make or enforce

any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law? nor

deny to. any person within its

jurisdiction the equal protection of the

laws.

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S “seeee Final decisions of district

courts

The courts of appeals shall have

jurisdiction of appeals from all final

decisions of the district courts of the

United States, the United States District

Court for the District of the Canal Zone,

the District Court of Guam, and the

District Court of the Virginia Island,

except where a direct review may be had

in the Supreme Court. June 25, 1948, c.

646, 62 Stat. 929; Oct. 31, 1951, c. 655

§ 48, 65 Stat. 726; July 7, 1958, Pub. L.

85-508, § 12(e), 72 Stat. 348.

Ch. 21 CIVIL RIGHTS 42 § 1983

§ 1983. Civil action for deprivation of

rights

Every person who, under color of any

Statute, ordinance, regulation, custom,

or usage, of any State or Territory of

the District of Columbia, subjects, or

causes to be subjected, any citizen of

the United States or other person within

the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution

and laws, shall be liable to the party

injured in an action at law, suit in

equity, or other proper proceeding for

redress. For the purposes of this

section, any Act of Congress applicable

exclusively to the District of Columbia

shall be considered to be a statute of

the District of Columbia.

R.S. § 1979; Pub.L. 96-170, § 1, Dec. 29,

1979, 93 Stat. 1284.

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WEST VIRGINIA COMMISSIONER

OF HIGHWAYS § 17-2A-4

§ 17-2A-4. Selection, organization,

classification, etc., of

personnel; business manager

and chief engineer

assistants; employees’ bonds.

The commissioner shall be in charge

of and responsible for the selection,

employment and effective organization of

all commission personnel for the entire

State road and highway program. de may

establish such divisions, sections and

other functional and organizational units

within the commission as may be necessary

and practical in the furi and effective

discharge of the duties and

responsibilities of his office. Except

as otherwise provided by law, all

commission personnel shall be classified

pursuant to the job classification system

and shall be paid pursuant to the salary

scale established by the commissioner.

The commissioner shall select and

employ a business manager assistant and

one or more chief engineer assistants who

shall be registered professional

engineers, and shall establish such other

offices, activities, divisions, sections

and organizational units as may be

necessary and practical. The business

Manager assistant shall be in charge of

and responsible for matters of finance

and such other functions as may be

assigned to him from time to time by the

commissioner. The chief engineer

assistant or, if the commissioner has

selected and employed more than one chief

engineer assistant, the chief engineer

assistants shall be in charge of and

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:

responsible for planning, equipment,

materials, construction, maintenance, and

such other functions as may be designated

by the commissioner as well as such other

functions as may from time to time be

assigned to such chief engineer assistant

or assistants by the commissioner.

The commissioner shall require every

employee who collects fees or handles

funds or who has custody or control of

eguipment or supplies belonging to the

State to give bond, with such sureties

and in such penal sums as may be approved

by the commissioner, for the faithful

discharge of each such employee's duties

and his accounting for all such fees,

funds, equipment and supplies coming into

his hands or under his custody or

control. All such bonds, when approved

by the commissioner, shall be filed in

the office of the secretary of state.

Premiums on all such bonds shall be paid

from commission funds. (1957, c. 143;

1973, ¢c. 116.)

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