158 F.3d 768 (4th Cir. 1998), 97-1496, Sales v. Grant

Docket Nº:97-1496.
Citation:158 F.3d 768
Party Name:Inez SALES; Debra M. Miller, Plaintiffs-Appellants, v. Alphonso L. GRANT; John E. Mason, Jr., in their individual capacities and in their official capacities as members of the city of Lynchburg Electoral Board; David T. Petty, Jr., in his official capacity as a member of the City of Lynchburg Electoral Board; Carol Spencer Read, Defendants-Appellee
Case Date:October 14, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 768

158 F.3d 768 (4th Cir. 1998)

Inez SALES; Debra M. Miller, Plaintiffs-Appellants,


Alphonso L. GRANT; John E. Mason, Jr., in their individual

capacities and in their official capacities as members of

the city of Lynchburg Electoral Board; David T. Petty, Jr.,

in his official capacity as a member of the City of

Lynchburg Electoral Board; Carol Spencer Read, Defendants-Appellees,


City of Lynchburg Electoral Board, Defendant.

No. 97-1496.

United States Court of Appeals, Fourth Circuit

October 14, 1998

Argued Jan. 28, 1998.

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[Copyrighted Material Omitted]

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ARGUED: David Edward Constine, III, Mays & Valentine, L.L.P., Richmond, VA, for Appellants. Bradley Brent Cavedo, Shuford, Rubin & Gibney, P.C., Richmond, VA, for Appellees. ON BRIEF: Anthony F. Troy, Claudia T. Salomon, Mays & Valentine, L.L.P., Richmond, VA, for Appellants.

Before WILLIAMS, Circuit Judge, PHILLIPS, Senior Circuit Judge, and FOX, Chief United States District Judge for the Eastern District of North Carolina, sitting by designation.

Affirmed in part and reversed and remanded for a new trial by published opinion. Senior Judge PHILLIPS wrote the opinion, in which Judge WILLIAMS and Chief Judge FOX joined.


PHILLIPS, Senior Circuit Judge.

This is an appeal by Debra Miller and Inez Sales, former Assistant Registrars of the City of Lynchburg, Virginia, from a judgment dismissing their action under 42 U.S.C. § 1983 (1994) in which they claimed that members of the Lynchburg Electoral Board violated their constitutional rights by causing them not to be reappointed because of their political affiliations. They principally challenge the district court's dismissal of their claims as a matter of law for failure of proof in their jury trial. They also challenge the court's refusal to apply offensive collateral estoppel to establish the fact of unconstitutional motive for a related non-reappointment decision and the trial judge's refusal to recuse himself for revealed bias. Because we conclude that the court erred in dismissing the claims as a matter of law for failure of proof, we vacate the judgment and remand for a new trial. Because resolution of the collateral estoppel issue could affect a re-trial, we address it and find no abuse of discretion in the district court's refusal to apply it under the circumstances. In view of our vacatur of the judgment on other grounds, we consider it unnecessary to address the recusal issue as it might have affected the judgment appealed, but observe that our declination to address it is without prejudice to the right of Miller or Sales to renew their recusal motion upon remand if so disposed.


In late 1993, Republican George Allen was elected Governor of Virginia replacing incumbent

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Democrat Douglas Wilder. 1 At the time, Linda Arnold was the General Registrar of the City of Lynchburg and Miller and Sales were employed as her Assistant Registrars. Arnold had been appointed in 1983 after the gubernatorial election of Democrat Charles Robb and had selected Sales as Assistant Registrar in 1985 and Miller in 1991. All three had then served continuously until 1995.

In Virginia, a general registrar is appointed for a four-year term by the electoral board of each county or city. Va.Code § 24.2-110. Electoral boards are composed of three members, who are appointed based on the political party that they represent. Id. § 24.2-106. The composition of each board is dictated by the political affiliation of the governor currently in office; specifically, the party winning the previous gubernatorial election is entitled to two of the three electoral board seats with the remaining seat being filled by the political party garnering the second highest number of votes for the governorship. Id.

Based on the staggered three-year terms of the board members and the term length for the registrar, the newly-constituted board appoints a registrar in the second March after the election of the governor. The electoral board also is empowered to set the number and terms of assistant registrars for its county or city. Id. § 24.2-112. However, the registrar, and not the electoral board, appoints the assistant registrars. Id.

When Governor Allen was elected, John E. Mason, Jr. was the lone Republican representative on the Lynchburg Electoral Board. Under the "to the victor goes the spoils" arrangement, Samuel Snow was appointed as the second Republican Board member in March 1994 replacing a Democratic appointee. The other Democratic member, David T. Petty, Jr., remained on the Board.

Within days after Governor Allen's election, Mason attended a meeting with then Chairman of the Lynchburg Republican Committee, Michael Harrington, and then Republican delegate to the Virginia House of Delegates, Stephen Newman, to discuss prospects for Registrar candidates now that a Republican governor had assumed office for the first time in twelve years. (J.A. at 612.) At that meeting, words were used to the effect that "George Allen has won and we get to occupy the registrar's office." (Id. at 614.)

On March 10, 1994, Mason contacted Louise B. Plecker, the Registrar of Bath County, to discuss matters including the Lynchburg Registrar position. (Id. at 237.) During the course of the conversation, Mason informed Plecker that Arnold was a good Registrar and was performing admirably, but that he wanted to replace her somehow. (Id. at 238.) Plecker responded that the appointment of registrar could no longer be dictated by party affiliation and promptly ended the discussion. (Id. at 239.) 2

Around this time, Mason confronted Arnold and asked her whether, under the new circumstances, she was going to seek reappointment. (Id. at 607.) By this, he was referring to the new circumstances that there was a new Republican governor; that Arnold's term was coming to an end; and that there would be a Republican Electoral Board majority. (Id. at 608.) At the time, Mason knew that Arnold was the Democratic Party's choice for Registrar. (Id. at 601-02.)

In August 1994, Arnold received a letter from Robert Garber, the then Chairman of the Lynchburg Republican Committee, accusing Arnold and her office of engaging in partisan politics. (Id. at 1034.) Specifically, Garber claimed that the Registrar's office had refused to provide a requesting constituent with the telephone number for the Republican Party headquarters. (Id.) Garber's letter asserted that Arnold "and [her] office operated in a partisan Democratic manor [sic]. If the allegations are true it would

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represent concern to the integrity of the office. Therefore, I would ask that in the future Republicans receive the same type of treatment as their Democratic counterparts." (Id.) Arnold forwarded a copy of the letter to Mason and both conducted inquiries into its validity. (Id. at 604, 688.) Mason understood the reference to Arnold's "office" to mean Miller and Sales. (Id. at 689-90.) His inquiries led him to believe that Garber's accusations were groundless. (Id. at 604, 690-91, 695-96.)

In January 1995, Mason met with several Republican delegates to discuss how not to reappoint Arnold. (Id. at 629-30.) At the meeting, he solicited guidance about how to proceed without violating the law. (Id.) Following this meeting, Mason suggested to fellow Board members Snow and Petty that the Registrar position be advertised. (Id. at 275-76.) When neither immediately agreed with Mason, the three Board members decided to delay further discussions on the issue until the Board's next meeting. (Id.) After speaking privately with Mason and Alphonso L. Grant, an active supporter of Republican political causes, Snow resigned before the scheduled Board meeting because of general pressure or stress surrounding the reappointment decision. (Id. at 265-66.) Grant was selected to replace Snow on the Board and immediately voted with Mason to advertise the Registrar position.

After initiating the advertising, the Board enlisted the City of Lynchburg Personnel Department to handle incoming applications. (Id. at 537.) The Personnel Department then narrowed the field by suggesting nine final candidates for interview. (Id.) Of these final nine applicants, at least two, Carol Spencer Read and Dori Harvey, had been specifically solicited by Grant to submit applications. (Id. at 703-06, 753-55.) With regard to Harvey, Grant solicited her application through her father, Chip Harvey. Prior to speaking with Chip Harvey, Grant had seen him at Republican functions including fundraisers for political candidates. (Id. at 704.) When Dori Harvey submitted her application, it also was accompanied by an endorsement letter from Flo Traywick, a prominent Lynchburg Republican who served as a National Republican Committee Woman. (Id. at 670-71.)

During the Personnel Department's involvement in the initial screening process, Robert Chambers was the employee primarily responsible for evaluating the applicants. (Id. at 786.) Grant, as liaison for the Board, was the sole member of that group dealing with Chambers at this time. (Id. at 787.)

On March 22, 1995, the Personnel Department Selection Committee sent the Electoral Board a memorandum regarding the Registrar position that read as follows: "Two candidates, Lori Nuckles and Dori Harvey, were included; however, in our opinion, both would best be suited in the Assistant Registrar position...." (Id. at 1063.) Chambers later testified at trial that he created this memorandum at Grant's direction and inserted language from a draft copy supplied by Grant. (Id. at 795.) He asserted that before receiving Grant's draft he had never been asked to evaluate the candidates for possible employment as an Assistant Registrar. (Id. at 796.) He further testified that he prepared the memorandum solely because of Grant's direction and did not intend it to be any kind of recommendation from the...

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