Appendix — Gilbertson v. Bever (Nos. 84-25, 83-2139)

FILED

JUN 20 i984

ALEXANDER L. STEVAg,

CLERK ‘J

IN THE SUPREME COURT OF THE UNITED STATES

84-25°

No.

OCTOBER TERM 1983

WALTER GILBERTSON and CHARLES L. MILLER,

| Petitioners,

vs.

JOHN M. BEVER, et al.

Respondents.

APPENDIX

David P. Cleek

Light & Cleek

2008 Kanawha Boulevard, East

Charleston, WV 25311

(304) 343-0144

Counsel for Petitioners

APPENDIX

TABLE OF CONTENTS

Appendix A: Opinion of

the United States Court

of Appeals for the Fourth

Circuit 1-A

Appendix B: District Court

Opinion Denying Petitioners'

Motions for Summary Judgment 44-A

Appendix C: Order of the United

States Court of Appeals for the

Fourth Circuit Denying a Rehearing 83-A

Appendix D: Judgment Order of the

United States Court of Appeals for

the Fourth Circuit 85-A

Appendix E: Constitutional

Provisions and Statutes Involved 87-A

Appendix F: Affidavit of Governor

Rockefeller 91-A

Appendix G: Affidavit of Charles

L. Miller 103-A

Appendix H: Affidavit of Walter

Gilbertson 112-A

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 83-1790

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,

-1A-

versus

John D. Rockefelle~, 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 4H.

Haden, II, District Judge, 82-2506

Argued October 5, 1983

Decided January ll, 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 4H.

Browning, Attorney General; Edward W.

Eardley, Steptoe & Johnson on brief) for

Appellants Charles L. Miller and Walter

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

Bucci on brief) for Appellees.

—To

PU DGS CAMEL Oa

0 mee

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

Plaintiffs, the sole or _ principal

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 torth in their

official 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. ‘Yhe 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

G.8.6.a. 4 isgneth). 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 th* 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.

I.

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

guestion 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 state

statute which required the plaintiffs to

=€A-

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

v. 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

~ ;

Jeopardy Clause, while in Nixon v.

Fitzgerald, 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

«fie

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. It

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, 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 equitable

remedy sought, complete relief might be

obtainable 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.

-11A-

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, or 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

responsible public officials, would give

the litigation all of the thought and

attention necessary adequately to protect

the interest of the state.

-12A-

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, however, 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 appealable 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-

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 liitigants 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

(1971). An order denying class

certification is not within the doctrine.

Coopers & Lybrand v. Livesay, Sar” BeBe

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 proceed 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

(10th 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.

If.

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 official, 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

qualified immunity is not available to

him if he does not do that.

In 1981, when these plaintiffs were

terminated as employees of the Department

of Highways, their constitutional right

-19A-

not to be discharged solely because of

their political affiliation was clearly

established. Elrod v. Burns, 427 U.S.

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-

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 their 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, 635 F. 2d 1277 (7th

Cit. 2pee), bat 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 selected

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-

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.

I.

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

-25A-

._ 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 sienstien the immunity

claim remain unresolved. According to

the uncontradicted evidence neither

Governor Rockefeller or 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 v. 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. 800

(1982), the Supreme Court recognized the

applicability of the collateral order

-28A-

doctrine to both absolute and qualified

immunity claims and the need. for

pre-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,

Ger. «5 20 sen, o26 (0.C. Cit. 1982);

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

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

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

Vv. Kleindienst, . . BR ote a Be ge

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-

this is certainly the one. 7!

II.

Official immunity has long been

recognized as a concept essential to the

effective functioning of government.

2/ The majority's reference to the

unpublished decision in Benford v.

American Broadcasting Companies, Inc., et

al., No. 83-1168 (4th Cir., April 11,

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 against

"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 , 102 S.Ct. at 2739, n.

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:

(I)t 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, 581 (CA 2 1949), cert.

denied 339 U.S. 949 (1950).

457 U.S. at » 202 RCt. at 2736.

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. 26 at

316. Similarly, the Third Circuit in

-33A-

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

a claim of absolute immunity". . .

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. It

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

5/

insubstantial claim for damages.

3/ Under W.Va. Code § 17-2A-4

(1983), only Commissioner Miller has the

authority to order reinstatement.

4/ The majority concludes that it

makes no difference whether the personal

pocketbooks of appellants are at risk or

-35A-

(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 Suzreme Court noted in Harlow, 457

0.8. at e 402 S.Ct. at 2736, 2738,

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 sezve in public office.

/ 2 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

pers7nal 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 55% of the DOH

employees terminated in 1981 were persons

hired by Governor Rockefeller's

administration, while only 38-39% of

those terminated were persons hired by

the former Republican administration.

I am thus at a loss to understand

the district court's rationale for

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 politically

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 their 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. 2d 753 (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

757, //

-

/ Other decisions in this Circuit

which reflect the continuing uncertainty

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 v.

Jones, 635 F. 2d 1277 (7th Cir. 1980),

cert. denied, U.S. » 262 Ba St.

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 v. 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-

plaintiffs be reinstated, and of the

fiscal exigencies, .. . the State's

interest in maimtaining 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 mot Elrod applies in the

instant case, where a substantial portion

of the public employment 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 remaimed in their DOH jobs in

1981. Thus, the applicability of Elrod

to the facts of this case, and the

constitutional violations which

plaintiffs assert, are highly

guestionable amd at the very least

justify pre-trial review by this Court

-41A-

ee

-

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 have 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 order

doctrine and would address the immunity

claims on their merits.

-43A-

es Se

APPENDIX B

IN 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

1 and

Defendants Gum, Gilbertson, Miller

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.

-44A-

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 thas

action in the Circuit Court of Kanawha

County, West Virginia. Subsequentiy,

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-

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 Doddridge

County, West Virginia. The alleged

"political firing" of the ten Plaintiffs,

all registered Republicans, was said to

have been perpetrated by Defendants under

-46A-

piatiap Ripon Natal Mtimmrcicies <i

the democratic administration of West

Virginia Governor John D. Rockefeller,

IV. 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-

indirectly violated their rights by

failing to act when they "knew or should

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.° The

immunity defense, although not raised by

motion prior to the scheduled prehearing

conference, was nevertheless considered

by this Court in anticipation of the

March 7 injunction hearing. The Court

determined, and so informed the parties

on March 2, 1983, that under the Eleventh

Amendment to the United States

Constitution and under Edelman v. Jordan,

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

3 Wilton Williams, however, was not

a state employee and thus could assert no

immunity or good faith defenses.

-48A-

ae ew Lio chai sisson > Se

REO OSE ES RE EO

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

U.S. 332 (1979), Plaintiffs were

precluded 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 (b) of amending their complaint to

replace their back pay request with a

prayer for money damages in that amount

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. 15438

(June 30, 1983).

: The complaint as originally filed

sought only injunctive relief: That is,

retrospective relief in the form of back

pay; and prospective relief in the form

of reinstatement to their previously held

positions.

-49A-

Plaintiffs chose tc amend their

complaint.

The motions of Defendants Gun,

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. 2d 1291 (4th Cir. 1975); Miller v.

Board of Education of Cty. of Lincoln,

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

Those issues revolving around

-50A-

a binant anata Sas haa onion ahi a

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, Miller 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.

=SGiie

Perrine, and (2) for summary judgment

based upon official immunity. In

addition, Defendant Pockefeller 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

dispositive motions, are, however,

opposed by Plaintiffs and memoranda in

response thereto, supplemented by

Plaintiffs' counsel's aff*davit’ have

been submitted.

q This affidavit is the subject of a

motion to strike by Defendant

Rockefeller. That motion will be

addressed below.

-53A-

Ze 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 affo’d 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-

feb Ah ame De St wane are eal npg

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-

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-

Black Firefighters of Norfolk v. Hirst,

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

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

U.S. 41 (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

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.

-59A-

alleged 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-

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 the 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 regard 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,

550 F. 24 926 (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-

a. 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 U.S. 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-

a: TT ca eo

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 (5th 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),2 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'

complaint. *°

The cause of action previously

styled a “Knew or should have known"

claim falls under the provisions of 42

U.8.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

exception 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.

-67A-

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

ots 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

G.8e Dave Since, in an action under the

authority of Elrod and Branti,

Plaintiffs' prima facie case does not

-68A-

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, 611 F. 2d 406 (lst Cir.

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

(5th 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

-69A-

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

Cis. i975). Therefore, this remaining

ground for dismissal must also be denied.

-70A-

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, U.S. ao > a ae

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

constitutional rights of which a

reasonable person would have known." Id.

aFIl Ao era

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" hag

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.

-72A-

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

-73A-

subsequently reaffirmed in Branti, prior

to Plaintiffs' terminations.)>/ 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

15 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.

-74A-

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 FF. 24 1164 (7th Cir. 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).7° ‘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.

-76A-

Nar oe Ne CNET eR ee Fee ee

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 gole 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

+7 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

-77A-

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 a

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.

-78A-

Ce

established, the immunity defense

ordinarily should fail, since a

reasonably competent public official

should know the law governing iuis

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. 2° 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.

-79A-

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

Accordingly, in view of the

foregoing, the Court hereby ORDERS:

1. 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 Gum,

Gilbertson and Miller for continuance and

consolidation with trial on the merits is

denied as moot;

a> The motion of Defendant

Rockefeller for continuance and for

consolidation with trial on the merits is

denied as moot;

5. The motion of Defendant

Rockefeller for judgment on the pleadings

and fc. summary judgment is denied as

moot;

6. The motion of Defendants Gum,

-80A-

Gilbertson and Miller to dismiss

Plaintiff Seepebene Perrine is granted;

Te 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.

-~81A-

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 H. Haden, II

Charles HH. Haden II,

Chief Judge

-82A

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 83-1790

John M. Bever, et al,

versus

Walter Gilbertson and

Charles L. Miller,

and John Gum, et al

No. 83-1791

John M. Bever, et al,-

versus

John D. Rockefeller, IV,

and

John Gum, et al,

ORDER

The appellants’

Appellees,

Appellants,

Defendants.

Appellees,

Appellant,

Defendants.

petition for

rehearing and suggestion for rehearing en

banc has been submitted to the court.

-83A-

A

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. 7

It is ADJUDGED and ORDERED that the

petition for rehearing and suggestion for

rehearing en banc are denied.

‘Ratered 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

-84A-

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

-85A-

of South Carolina.

On consideration whereof, it is now

here ordered and adjudged by this Court

that a certificate of , ‘obable cause to

appeal is denied, and the appeal is

hereby, dismissed.

/s/ William K. Slate, II

CLERK

-86A-

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;

er abridging the freedom of speech, or of

the press; or the right of the people

peaceably to assemble, and to petition

the Government for a redress of

grievances.

(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.

-87A-

§ 1291. 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 censidered to be a statute of

the District of Columbia.

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

1979, 93 Stat. 1284.

-88A-

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. He may

establish such divisions, sections and

other functional and organizational units

within the commission as may be necessary

and practical in the full 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

-89A5

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

equipment 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.)

-90A-

APPENDIX F

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

JOHN M. BEVER, et al.,

Plaintiffs, .

Ve CIVIL ACTION NO. 82-2506

JOHN GUM, et al.,

Defendants.

AFFIDAVIT OF GOVERNOR ROCKEFELLER

STATE OF WEST VIRGINIA,

COUNTY OF KANAWHA, To-Wit:

JOHN D. ROCKEFELLER IV, being first

duly sworn, deposes and says as follows:

1. He is Governor of the State of

West Virginia and one of the defendants

in this case. He was first elected

Governor in the general election of

November, 1976, was inaugurated January

17, 1977, and was elected to a second

term in the general election of November,

1980.

-91A-

Z's As Governor, he does not

normally participate or attempt to

participate in the employment decisions

of individual state agencies, including

the Department of Highways, for the

reason that such decisions are considered

to be within the jurisdiction and

authority of the respective heads of the

State agencies. The Governor's only

involvement in such employment decisions

is in terms of setting the tone and

policy of his administration with regard

to employment practices, as reflected by

the following acts:

a. During the Governor's

first term in office and in

fact beginning early in 1977,

the Governor's staff, at his

direction, instructed executive

department heads concerning the

Supreme Court decision of Elrod

v. Burns and the constitutional

-92A-

prohibition against depriving

public employees in

non-policymaking positions of

their jobs on the basis of

political affiliation; and

b. In November of 1978,

the Governor promulgated

Executive Order No. 16-78,

which, among other enbeees:

instructed all executive

agencies that the policy of the

State of West Virginia was and

is opposed to discrimination in

employment on the basis of

race, color, sex, national

origin, handicap, age, religion

or political affiliation. 4

copy of this Executive order is

attached hereto and made a part

hereof as "Exhibit A."

-93A-

3. The Governor does not know the

plaintiffs in this case, had no personal

involvement in the decision to terminate

these plaintiffs from employment with the

Department of Highways, has no knowledge

that any of these plaintiffs were in fact

terminated from such employment on the

basis of their political affiliations or

beliefs, and has no knowledge concerning

their terminations other than as acquired

in connection with this litigation and as

set forth in this Affidavit.

4. The Governor did not participate

in and has no knowledge concerning any

anYewied conspiracy, scheme or plan to

deprive these plaintiffs of their

employment with the Department of

Highways or to deprive any person of his

cor her employment with the Department of

Highways based on political affiliation.

S. In January 1980, the Governor,

in performing his constitutional mandate

-94A-

to provide revenue estimates with respect

to budget proposals made to the

Legislature for fiscal year 1981 (July l,

1980 through June 30, 1981), estimated

that State Road Fund revenues from taxes

and fees (Gasoline, Motor Vehicle and

Privilege Taxes and Fees) for fiscal year

1981 would be in the sum of $228.5

million. These estimates were made by

the Governor and submitted to the

Legislature on the basis of information

provided him by the Commissioner of

Finance and Administration. However, due

to a worsening economy, actual revenues

received by the Road Fund in fiscal year

1981 from these taxes and fees totaled

only $191.6 million, a shortfall of $36.9

million.

6. The Governor is advised and

believes that these plaintiff's positions

with the Department of Highways were

eliminated in the first half of 1981 as

-95A-

a)

eae

part of a substantial reduction in the

workforce of the Department of Highways.

This reduction in the Department of

Highways workforce was a consequence of a

series of events and circumstances and of

decisions relating thereto which were

made by Commissioner Charles L. Miller in

consultation with the Governor and his

staff. This decision-making process is

described as follows:

a. In late 1980 and early

1981, the Governor and his

staff were advised by

Commissioner Miller of severe

fiscal and budgetary

constraints in the Department

of Highways. These budgetary

constraints resulted from a

combination of causes,

including (1) the aforesaid

failure of Road Fund revenues

to meet estimates, (2)

-96A-

A i ee

reductions in highway funds

available from the federal

government, and (3)

insufficient legislative

appropriations to the

Department of Highways;

b. Various alternative

procedures for coping with

these problems, including

reductions in the number of

Department of Highways

personnel, were proposed,

considered and evaluated by the

Department of Highways and the

Governor's office. These

alternatives, including the

need for and timing of

reductions in Department of

Highways personnel, were

documented by Commissioner

Miller in a series of memoranda

to the Governor and his staff,

-97A-

which are attached hereto and

made a part hereof as follows:

(1) "Exhibit

B-1": Memorandum of

November 17, 1980 -

Commissioner Miller

to Governor

Rockefeller;

(2) "Exhibit

B-2": Memorandum of

“November 19, 1980 -

Commissioner Miller

to Governor

Rockefeller;

(3) "Exhibit

B-3": Memorandum of

December 18, 1980 -

Commissioner Miller

to Governor

Rockefeller;

(4) "Exhibit

B-4": Memorandum of

January 7, 1981 -

Commissioner Miller

to Governor

Rockefeller;

(5) "Exhibit

B-5":; Memorandum of

January 14, 1981 -

Commissioner Miller

to Governor

Rockefeller;

(6) "Exhibit

B-6": Memorandum of

January 15, 1981 -

Commissioner Miller

-98A-

to Governor

Rockefeller;

(7) "Exhibit

B-7": Memorandum of

March 16, 1981 -

Commissioner Miller

to Executive

Assistant Nick

Lazaris;

- (8) "Exhibit

B-8": Memorandum of

March 18, 1981 -

Commissioner Miller

to Mr. Lazaris;

(9) "Exhibit

B-9": Memorandum of

May 26, 1981 -

Commissioner Miller

to Mr. Lazaris;

(10) "Exhibit

B-10": Memorandum of

June De 1981 -

Commissioner Miller

to Governor

Rockefeller; and

C. Based on information

available to him in late 1980

and early 1981 concerning the

fiscal constraints confronting

the Department of Highways,

supplemental

-99A-

appropriations

provided by the Legislature to

the Department of Highways for

fiscal year i981, and the

appropriations provided to the

Department of Highways by the

Legislature for fiscal year

1982 (July 1, 1981 through June

30, 1982), the Governor

believed and believes, given

the available financial

resources, that reductions in

Department of Highways

personnel were necessary and

essential to the fulfillment of

his statutory and

constitutional obligations as

Governor to maintain the fiscal

integrity of the State, and to

the continuation of a viable

road maintenance and

construction program in the

State of West Virginia.

-100A-

7. At no time in connection with

the decision to reduce the Department of

Highways workforce in 1981 did the

Governor consider, suggest, authorize, or

otherwise intend that such reduction be

accomplished because of or based on the

political affiliation or beliefs of any

Department of Highways employee.

8. At no time in connection with

the implementation of the reduction of

the Department of Highways workforce in

1981 did the Governor authorize or

appoint Wilton Williams or any Democratic

party official to act as his agent in

connection with any decision to terminate

the plaintiffs in this case.

9. At no time during the period in

which these reductions in the Department

of Highways workforce were implemented in

1981 was the Governor advised of or did

he have knowledge of any effort or

attempt to implement such reduction in

-1014-

the Department of Highways workforce

through a pattern or practice of

political discrimination.

10. All actions taken by the

undersigned as Governor and by the

Governor's office with respect to these

1981 layoffs were taken in good faith,

were based solely upon fiscal and

budgetary constraints impacting upon West

Virginia and the Department of Highways,

and were wholly unrelated to political

considerations.

And further affiant saith not.

{s/f John D. Rockefeller IV

JOHN D. ROCKEFELLER IV

Taken, sworn and subscribced before

me this 20th day of May, 1983.

My commission expires Feb. 1, 1989.

/s/ SANDRA W. LOPINSKY

NOTARY PUBLIC

-102A-

APPENDIX G

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST VIRGINIA

At Charleston

JOHN BEVER, et al.,

Plaintiffs,

(Chief Judge Haden)

JOHN GUM, et al.,

Defendants.

AFFIDAVIT OF CHARLES L. MILLER

STATE OF WEST VIRGINIA,

COUNTY OF KANAWHA, To-Wit:

Charles L. Miller, being first duly

Sworn, deposes and says as follows:

l. Commissioner Miller

Commissioner of Highways of the State

West Virginia, having been appointed

that position in September of 1977

is

of

to

by

Governor Rockefeller. He has served

continuously as Commissioner of Highways

since that time.

Ze Prior to being appointed

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Commissioner, Commissioner Miller was

Chief Engineer of Operations for the

Department. Commissioner Miller has been

employed in the Department of Highways in

various capacities since 1954, and was

District Engineer of District Two from

1974 to 1977. He received a B.S. degree

in Civil Engineering from West Virginia

University in 1961.

3. Throughout his employment with

the Department of Highways, he has

engaged in no political activity other

than voting.

4. The West Virginia Department of

Highways is a statewide agency organized

into fifty-five county units and six

district units in the field throughout

the State, as well as approximately

twenty divisions and other top level

managerial and engineering offices in the

central headquarters in Charleston.

5. During 1979, the Department had

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in excess of 7900 employees assigned to

these various units. This level of

employment has been steadily reduced

Since that time, both by attrition and by

layoff, to approximately 5813 employees

at the end of fiscal year 1981, to 5476

employees at the end of fiscal year 1982,

and to 5274 employees at present. This

represents a total reduction in the work

force of the Department of Highways of

over 2600 employees since 1979.

6. In late 1980, severe fiscal and

budgetary constraints were imposed upon

the Department of Highways resulting from

a combination of occurrences, including

(a) the failure of Road Fund revenues to

meet estimates, (b) reductions in

highway funds available from the federal

government, and (c) insufficient

legislative appropriations to the

Department.

7. In early 1981, because of these

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serious fiscal and budgetary constraints,

cost reduction measures in the form of

personnel cutbacks were effected in the

Department of Highways in a series of

three layoffs. In these layoffs a total

of approximately 1531 employee positions

were eliminated. These layoffs occurred

as follows:

a. Approximately 185 employees —

on February 6, 1981;

b. Approximately 496 employees

on February 27, 1981; and

c. Approximately 850 employees

on June 30, 1981.

In addition to these layoffs, a total of

142 CETA positions were eliminated on

April 1 and July 28, 1981.

8. In January 1980, the Governor,

in his revenue estimates for fiscal yéar

1981, estimated that the State Road Fund

would generate revenues in fiscal year

1981 in the sum of $228.5 million.

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However, actual revenues received failed

to comport with these estimates, with

Road Fund receipts for fiscal year 1981

being in the sum of approximately $191.6

million, $36.9 million less than the

estimate made eighteen months earlier.

9. The reasons for the cost

reduction step in the form of the

February 6, 1981 layoff. were outlined by

Commissioner Miller in a memorandum of

December 18, 1980 entitled "Cost

Reduction Proposal: Contract

Administration Programs" directed to

Governor Rockefeller. A copy of this

Memorandum is attached hereto and made a

part hereof as “Miller Affidavit Exhibit

A."

10. In an attempt to. alleviate the

budgetary problems of the Department in

late 1980 and early 1981 and to forestall

the necessity of further reductions in

personnel, relief was sought from the

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Legislature in the form of a supplemental

appropriation for fiscal year 1981.

Although the Governor requested a

supplemental appropriation in the sum of

$31.5 million, the Legislature

appropriated $26.5 million only.

Confronted with the fact of this reduced

supplemental appropriation and_ the

necessity for further cost reductions,

the second layoff of February 17, 1981

was effected.

ll. The fiscal year 1982 budget

request made by Governor Rockefeller

included a transfer of $81.65 million to

the Department of Highways from the

General Revenue and Revenue Sharing

Funds. However, legislative

appropriations from the General Revenue

and Revenue Sharing Funds to the

Department for fiscal year 1982 totaled

only $48.5 million. Because of the

substantial reduction in the amount of

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funds appropriated for transfer from

General Revenue and Revenue Sharing Funds

for fiscal year 1982, further cost

reduction measures were required,

including the layoff of additional

personnel on June 30, 1981.

12. All actions taken by the

undersigned as Commissioner with respect

to these 1981 layoffs were taken in good

faith, were based solely upon fiscal and

budgetary constraints impacting upon West

Virginia and the Department of Highways,

and were wholly unrelated to political

considerations.

13. At no time in connection with

the decision to reduce the Department of

Highway's work force in 1981 did

Commissioner Miller consider, suggest,

authorize or otherwise intend that such

reduction be accomplished because of or

based on the political affiliation or

beliefs of any Department of Highways'

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employee.

14. At no time in connection with

the 1981 reduction in force of Department

of Highways personnel was Commissioner

Miller instructed or advised by Governor

Rockefeller, any member of the Governor's

staff, or any other person to effectuate

such reduction based upon an employee's

political affiliation or belief. In fact

Commissioner Miller was instructed not to

do so, and was specifically advised by

persons on the Governor's staff about the

case of Elrod v. Burns. Therafter, he

properly adopted an affirmative action

plan precisely in . accordance with the

State Affirmative Action officer's

guidelines, arising out of Executive

Order 16-78.

15. Commissioner Miller had no

personal involvement whatsoever in the

decision to terminate these specific

plaintiffs, does not know these

plaintiffs and has no knowledge

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cencerning the decisions to terminate

these plaintiffs other than as acquired

in connection with this litigation and as

set forth in this Affidavit.

16. Commissioner Miller did not

participate in and has no knowledge

concerning any unlawful conspiracy,

scheme or plan to deprive these

plaintiffs of their employment with the

Department of Highways or to deprive any

person of his or her employment with the

Department of Highways based on political

affiliation.

And further affiant saith not.

/s/ Charles L. Miller

CHARLES L. MILLER

Taken, subscribed and sworn to

before me this 13th day of June, 1983.

My commission expires September 22,

1991.

/s/ JANET L. RILEY

NOTARY PUBLIC

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APPENDIX H

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST

VIRGINIA

JOHN BEVER, et al.,

Plaintiffs,

Vv. CIVIL ACTION NO. 82-2506

JOHN GUM, et al.,

Defendants.

AFFIDAVIT OF WALTER GILBERTSON

STATE OF WEST VIRGINIA,

COUNTY OF HARRISON, to-wit:

Walter Gilbertson, being first duly

sworn, deposes and says as follows:

1. He is District Engineer for

District 4 of the West Virginia

Department of Highways, having been

appointed to that position November,

1977. He has served continuously since

that time as District 4 Engineer, which

district has as its headquarters at

Clarksburg, West Virginia.

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2. He has been employed since 1954

by the West Virginia Department of

Highways in various capacities and is

currently under the Civil Service System.

3. He has not been involved in any

political activities since his employment

with the West Virginia Department of

Highways except for voting.

4. In 1981, there were a total of

six (6) counties under the

jurisdiction--Doddridge, Harrison,

Marion, Monongalia, Preston and Taylor

counties.

5. All actions taken by the affiant

with respect to the 1981 layoffs were

taken in good faith in accordance with

the directives of Commissioner Charles

Miller and applicable central office

policies of the Department of Highways.

6. At no time did affiant consider,

suggest, authorize or otherwise intend

that the layoffs made in District 4,

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including those required to be made in

Doddridge County, be made on the basis,

partially or wholly, of political

affiliation of any employee of the

Department.

7. At no time in connection with

the 1981 reduction in force of the

Department of Highways personnel was

affiant instructed, advised or counseled

by Commissioner Miller, Governor

Rockefeller, or anyone else to effectuate

the ordered layoffs based upon employees'

political affiliations or beliefs.

8. Affiant had no- personal

involvement whatsoever in the decision to

terminate these plaintiffs and has no

knowledge concerning the decision to

terminate these plaintiffs other than

that acquired in connection with this

litigation as set forth in this

affidavit.

9. Affiant did not participate in

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and has no knowledge concerning any

unlawful conspiracy, scheme or plan to

deprive these plaintiffs of their

employment with the Department of

Highways or to deprive any person of his

or her employment.

And further affiant saith not.

/s/ Walter Gilbertson

WALTER GILBERTSON

Taken, subscribed and sworn to

before me this 15th day of June, 1983.

s/ Kathleen C. Berry —

NOTARY PUBLIC

My commission expires July 21, 1985.

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