Opposition Brief — Cutcliffe v. Jenne

3! Supreme Court, U

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No. 97-1310 ; PPR 28 1998

CLERK

In The

Supreme Court of the Anited States

a

October Term, 1997

RICHARD MARK CUTCLIFFE, VICKI CUTCLIFFE,

GEORGE RAGGIO, JR. and CAROLE RAGGIO,

Petitioners,

VS.

KEN JENNE, as Sheriff of Broward County, Florida,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

CHARLES T. WHITELOCK

Counsel of Record

DAVID H. SPALTER

WHITELOCK & WILLIAMS, P.A.

Attorneys for Respondent

316 Northeast Fourth Street

Fort Lauderdale, Florida 33301

(954) 463-2001

14585 utz

1458+ (800) 274-3321 + (800) 359-6859 LA ppeliate

A DIVISION OF COUNSEL PRESS Services, inc.

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QUESTIONS PRESENTED

1. Whether the petition raises any issues of sufficient public

importance to warrant review by the United States Supreme

Court where the challenged decisions of the Circuit Court of

Appeal have been mooted by subsequent state legislation.

2. Whether the decisions of the Eleventh Circuit in Terry

v. Cook and this case are at odds with this Court’s decisions in

Elrod v. Burns and Branti v. Finkel.

3. Whether the Circuit Courts of Appeal have rendered

conflicting opinions, warranting review by this Court, regarding

the application of the principles espoused in Elrod and Branti

to deputy sheriffs employed in different states.

i

TABLE OF CONTENTS

Page

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Reasons for Demying the Writ... 1.2.2 c cc cceecvce: 2

Il. The Issues Presented In The Petition Do Not

Require Or Warrant Review By The Supreme

SO. cick cenevausracchan Jeane 2

ll. The Eleventh Circuit's Political Patronage

Decisions Are Consistent With The Decisions In

es ee Sb sk ks oc be ween 4

lil. The Purported Conflict Between The Circuits Is

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TABLE OF CITATIONS

Cases Cited:

Barrett v. Thomas, 649 F.2d 1193 (Sth Cir. 1981) .... 8

Branti v. Finkel, 445 U.S. 507 (1980) .. i, 1, 2, 3, 4, 5, 6, 7, 8

iii

Contents

Page

j Brockett v. Spokane Arcades, Inc., 105 S. Ct. 2794, 472

; Sige st ine eck cae ek es 7

:

Brown v. Trench, 787 F.2d 167 (3rd Cir. 1986) ...... 5

3

Burns v. County of Cambria, Pennsylvania, 971 F.2d

ee ee ED oo ca ks wcea es ene bee wasa os 8,9

Elrod v. Burns, 427 U.S. 347 (1976) ... i, 1, 2, 3, 4, 5, 6, 7, 8, 9

|

j Francia v. White, 594 F.2d 778 (10th Cir. 1979) ..... 8

Hall v. Tollett, 128 F.3d 418 (6th Cir. 1997) ........ 8

;

i Haring v. Prosise, 103 S. Ct. 2368, 462 U.S. 306 (1983)

SEIS EET Ce een ee Cee 7

Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236 (lst

Sr eee ee uae aa eek bia oe 5

3

j Layne & Bowler Corp. v. Western Well Works, Inc., 43 S.

ee en ee A OO ak tin beeen 2

;

Pembaur v. City of Cincinnati, 106 S. Ct. 1292 (1986)

Pee See Uh eel eee ak seu peew se Mak oakeiew @ 7

; Regents of University of Michigan v. Ewing, 106 S. Ct.

j ee ee Oe PO AO 5-5, 7

3

Terry v. Cook, 866 F.2d 373 (11th Cir. 1989) .......

Pe Le SaaS EER me Pte eee By 2 ms Fs BO

iv

Contents

Page

Tomczak v. City of Chicago, 765 F.2d 633 (7th Cir. 1985)

TAS Rite Nee age PNG a. sale OU a hey hice Wer = SMa Mess GPa g 5

Upton v. Thompson, 930 F.2d 1209 (7th Cir. 1991) .. 8

Statutes Cited:

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Alabama Statute, Section. 7-847 occ i dic cwssswe cess 3

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l

STATEMENT OF THE CASE

Petitioners were formerly employed as deputy sheriffs by

Respondent's predecessor Sheriff Nick Navarro. Petitioners

asserted claims below pursuant to 42 U.S.C. § 1983, alleging

that they were unlawfully terminated following the election of

Respondent, Sheriff Ron Cochran, because of their political

affiliation with Sheriff Navarro.

Following discovery, Sheriff Cochran filed a motion for

summary judgment. Following oral arguments before United

States District Judge Wilkie Ferguson, an order was entered

granting Sheriff Cochran’s motion and entering judgment in

Sheriff Cochran’s favor. In his order, Judge Ferguson held that

deputy sheriffs in Florida are among those employees falling

into the exception, established in this Court’s rulings in Elrod

v. Burns, 427 U.S. 347 (1976) and Branti v. Finkel, 445 U.S.

507 (1980), to the general rule prohibiting political patronage

terminations. Judge Ferguson’s ruling was grounded on his

finding that the Eleventh Circuit’s decision in Terry v. Cook,

866 F.2d 373 (11th Cir. 1989), which held that deputy sheriffs

in Alabama are subject to political patronage dismissal under

Elrod & Branti, is applicable to deputy sheriffs in Florida.

Petitioners appealed Judge Ferguson’s ruling, which was

affirmed by the Eleventh Circuit Court of Appeals. Petitioners

then sought rehearing en banc, asserting that the Eleventh

Circuit’s decision in Terry v. Cook is at odds with Elrod and

Branti. The Eleventh Circuit denied rehearing en banc, and

Petitioners subsequently filed this petition for writ of certiorari.

tv

REASONS FOR DENYING THE WRIT

l.

THE ISSUES PRESENTED IN THE PETITION DO

NOT REQUIRE OR WARRANT REVIEW BY THE

SUPREME COURT.

Petitioners argue that this Court should review the decision

of the Eleventh Circuit below for two reasons. First, Petitioners

contend that Jerry v. Cook, the decision relied upon by the

Eleventh Circuit in this case, is contrary to this Court's decisions

in Elrod and Branti. Second, Petitioners assert that the Circuit

Courts of Appeal are in conflict with regard to the application

of the rules promulgated in Elrod and Branti to the position of

deputy sheriff.

In the sections that follow, Respondent will demonstrate

that both of these contentions are incorrect. However, before

the merits of these issues are addressed in detail, a more

fundamental question should be posed; whether these issues,

even if genuine, warrant review by this Court.

In this regard, the following pronouncement addressing

the question of when petitions for writ of certiorari should be

granted is instructive:

It is very important that we be consistent in not

granting the writ of certiorari except in cases

involving principles the settlement of which is of

importance to the public as distinguished from the

parties, and in cases where there is a real and

embarrassing conflict of opinion and authority

between the circuit courts of appeal.'

1. Layne & Bowler Corp. v. Western Well Works, Inc., 43 S. Ct.

422, 423, 261 U.S. 387, 393 (1923).

The threshold requirement of a question of public

importance is lacking here because the decisions in Jerry vy.

Cook and this case have been mooted, respectively, by

legislation enacted in both Alabama and Florida in 1995 that

prohibit political patronage dismissals.* As a result of this

legislation, a review of Terry v. Cook and the Eleventh Circuit's

decision below would not obviate future litigation relating to

political patronage dismissals in either Alabama or Florida, nor

would it serve any other public purpose.’

Therefore, even if the court agrees with Senior District Judge

Harris’ suggestion that the “subject matter” of political patronage

dismissals “cries out for elucidation from the Supreme Court in

some appropriate future case,” it is apparent that this is not that

case.

2. Alabama Statutes, Section 17-1-7 prohibits actions against

State, county and city employees that result in a denial of the right

to participate in political activities “to the same extent as any other

citizen of the state of Alabama.”

Florida Statute 30.078 provides that:

When a newly elected or appointed sheriff assumes

office, the incoming sheriff may not terminate the

employment of any deputy sheriff ... for lawful off-duty

political activity or for a discriminatory reason. The

incoming sheriff may replace deputy sheriffs assigned

to managerial, confidential, or policymaking positions

or part-time deputy sheriffs.

3. Neither the decision in Terry v. Cook nor the decision below

addressed the question of whether deputy sheriffs in Georgia are

subject to political patronage dismissal under Elrod and Branti. This

case, therefore, is not an appropriate vehicle for review of the that

question.

4

THE ELEVENTH CIRCUIT’S POLITICAL

PATRONAGE DECISIONS ARE CONSISTENT WITH

THE DECISIONS IN ELROD AND BRANTI.

Petitioners assert that the Eleventh Circuit, in both Jerry v.

Cook and this case below, misapplied Elrod and Branti by

failing to engage in an “individual determination” of whether

party affiliation is an appropriate requirement for the continued

employment of each individual deputy. In fact, it is Petitioners,

rather than the Eleventh Circuit, who have misread Elrod and

Branti.

The distinction between the Petitioner's interpretation of

the rule articulated in Elrod and Branti and the actual rule is

subtle, but critical. Petitioners suggest that Elrod and Branti

require a review of the duties performed by each employee before

a court can ratify a decision to terminate their employment on

political patronage grounds. This is not a correct reading of

these cases because the inquiry contemplated in Elrod and Branti

is not this specific. Rather than addressing the duties performed

by each employee, courts must determine whether each public

office subjected to political patronage dismissal is of the type

for which “party affiliation is an appropriate requirement.””*

The correct analysis is best illustrated by the manner in

which this court rendered its decision in Branti. There, this

court was faced with the question of whether assistant public

defenders in Rockland County, New York, could be terminated

on political patronage grounds.* In answering this question in

the negative, this court analyzed the duties inherent in the

4. Branti, 445 U.S. at 518.

5. Id. at S509.

5

position of assistant public defender in that jurisdiction, not the

duties actually performed by the petitioners.°

The requirement of a position by position, rather than an

employee by employee, review has been explicitly recognized |

; by a number of Circuits. For example, in applying the Elrod

| and Branti rule, the First Circuit noted that “in conducting this

inquiry, courts focus on the powers inherent in a given office,

as opposed to the functions performed by a particular occupant

of that office.”’ Similarly, the Third Circuit has stated that “the

relevant inquiry is to the function of the public office in question

and not the actual past duties of the particular employee

involved.”* Finally, the Seventh Circuit has emphasized the

importance of focusing on the position, rather than the individual

employee, in noting that even

if an officeholder performs fewer or less important

functions than usually attend his position, he may

still be exempt from the prohibition against political

termination is his position inherently encompasses

tasks that make his political affiliation an appropriate

| requirement for effective performance.’

6. Id. at 1295.

dome rtd ans craccrn bee hy

7. Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 242

(Ist Cir. 1986).

8. Brown v. Trench, 787 F.2d 167, 168 (3rd Cir. 1986). It is

notable that the Third Circuit, which is among those cited by

Petitioners as opposing political terminations of deputy sheriffs, is

nonetheless among those Circuits that have confirmed that these

determinations are to be made upon a review of the duties of each

position, rather than each employee in question.

9. Tomczak v. City of Chicago, 765 F.2d 633, 641 (7th Cir. 1985).

4

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Thus, the Eleventh Circuit correctly applied Elrod and

Branti in both Terry v. Cook and in this case below. In Terry v.

Cook, the Court was faced with the question of whether party

affiliation is an appropriate requirement for the position of

deputy sheriff in Alabama. The court reviewed the nature of

the position, rather than the duties performed by individual

deputies, and found that:

Under Alabama law, a deputy sheriff is the general

agent of and empowered to enter into business

transactions for the sheriff. Any transaction within

the scope of the sheriff’s duties may be acted upon

by his deputy. The deputy sheriff is the alter ego of

the sheriff, and the sheriff is civilly liable for actions

committed by a deputy done in the performance of

his duty."®

Based on this analysis of the nature of a deputy sheriff in

Alabama, the Eleventh Circuit found that “the closeness and

cooperation required between sheriffs and their deputies

necessitates the sheriff's absolute authority over their

appointment and/or retention.”"'

In this case, the question of whether the Terry v. Cook

analysis of deputy sheriffs in Alabama is applicable to deputy

sheriffs in Florida was raised. The district court reviewed the

10. 866 F.2d at 377 (citations omitted).

11. Jd. The court also found that the sheriff had not established

that the positions of clerk, investigator, dispatcher, jailer and process

server in Alabama involve responsibilities that subject them to

political patronage termination, and noted that “such positions

traditionally revolve around limited objectives and defined duties

and do not require those holding them to function as the alter ego of

the sheriff.” Jd. at 377-8.

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nature of the position and found that “the relationship between

a sheriff and his deputies under Florida law is almost identical

to Alabama law.” As a result, the court found that the decision

in Terry v. Cook could be extended to deputy sheriffs in Florida.

Thus, contrary to Petitioners’ contention, in both Jerry v.

Cook and this case, the Eleventh Circuit sufficiently reviewed

the nature of the positions of deputy sheriff in Florida and

Alabama, and correctly applied the principles espoused in Elrod

and Branti. Furthermore, as these decisions were dependent on

reasonable interpretations of state law, this Court should leave

the rulings undisturbed pursuant to the long-standing doctrine

that this Court will “generally accord great deference to the

interpretation and application of state law by the courts of

appeals.”'?

12. Order Granting Summary Judgment, at note 4, citing Fla.

Stat. § 30.07 (1993).

13. Pembaur v. City of Cincinnati, 106 S. Ct. 1292, 1301 n.13

(1986); see also Regents of University of Michigan v. Ewing, 106

S. Ct. 507, 513 n.10, 474 U.S. 214 (1985) (“In dealing with issues of

state law that enter into judgments of federal courts, we are hesitant

to overrule decisions by federal courts skilled in the law of particular

States unless their conclusions are shown to be unreasonable.”);

Brockett v. Spokane Arcades, Inc., 105 S. Ct. 2794, 2800, 472 U.S.

491, 500 (1985) (“Normally, the court defers to the constructions of

a State statute by lower federal courts.”); Haring v. Prosise, 103

S. Ct. 2368, 2373 n.8, 462 U.S. 306, 314 n.8 (1983) (“it is our practice

to accept a reasonable construction of state law by the court of

appeals.”).

8

Il.

THE PURPORTED CONFLICT BETWEEN THE

CIRCUITS IS AN ILLUSION.

Petitioners next argue that this Court should review the

Eleventh Circuit’s decision below because the Circuit Courts

of Appeal are divided on the issue of whether deputy sheriffs

can, under Elrod and Branti, be subjected to political patronage

terminations.'* These Circuit decisions do not, however, reflect

a conflicting analysis of a single issue. Rather, these cases

demonstrate that deputy sheriffs in different parts of this country

have different duties and responsibilities. As a result, some

deputy sheriffs occupy positions for which political affiliation

is an appropriate prerequisite, while others do not.

This point is illustrated through a comparison of the

Circuits’ discussions of the nature of the positions of deputy

sheriff in the states in which their cases arose. For example, as

was stated previously, the Eleventh Circuit in Terry v. Cook

found that, in Alabama, deputy sheriffs are essentially the “alter

ego” of the sheriff, and are therefore subject to dismissal for

political reasons.'* In doing so, however, the court noted that

the positions of clerk, investigator, dispatcher, jailer and process

14. The Seventh and Fourth Circuits have found that deputy

sheriffs in Illinois and North Carolina, respectively, are subject to

dismissal on this ground. See Upton v. Thompson, 930 F.2d 1209,

1218 (7th Cir. 1991). The Third, Fifth, Sixth and Tenth Circuits have

found that deputy sheriffs in Pennsylvania, Texas, Tennessee and

New Mexico, respectively, are not. See Burns v. County of Cambria,

Pennsylvania, 971 F.2d 1015, 1023 (3rd Cir. 1992); Barrett v. Thomas,

649 F.2d 1193, 1201 (Sth Cir. 1981); Hall v. Tollett, 128 F.3d 418,

429 (6th Cir. 1997); Francia v. White, 594 F.2d 778, 782 (10th Cir.

1979) (pre-Branti).

15. 866 F.2d at 377.

9

server which, in Alabama, are not among those classified as

deputy sheriffs, may not be subject to political patronage

dismissals."*

Compare these findings to those that supported the decision

of the Third Circuit in Burns v. County of Cambria,

Pennsylvania. There, the court found that deputy sheriffs in the

Cambria County Sheriff's Office “primarily perform three tasks:

they serve process; they transport prisoners to court and between

facilities; and they provide security for courtrooms.” '’ The court

further noted that there was no basis to find that “the sheriff

himself performs any policy making function or that he relies

on his deputies for any policy-type duties.”"*

Obviously, the descriptions of the duties inherent to the

position of deputy sheriff in Alabama and Cambria County,

Pennsylvania are extremely varied. In fact, it appears that deputy

sheriffs in Cambria County have more in common with

Alabama's process servers and jailers than they do with

Alabama’s deputy sheriffs. Thus, while, on the surface, both

the Eleventh and Third Circuits considered the question of

whether a position titled “deputy sheriff” is subject to

termination for political reasons, the suggestion that these

Circuits addressed identical factual issues, and that their legal

conclusions are conflicting, is ludicrous.

Therefore, as no conflict between the Circuit Courts of

Appeal has been identified, Petitioners have not demonstrated

the need for review by this Court.

16. Id. at 378.

17. 971 F.2d at 1022.

18. /d. at 1023.

10

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari

should be denied by this court.

Respectfully submitted,

CHARLES T. WHITELOCK

Counsel of Record

DAVID H. SPALTER

WHITELOCK & WILLIAMS, P.A.

Attorneys for Respondent

316 Northeast Fourth Street

Fort Lauderdale, Florida 33301

(954) 463-2001