Hamm v. Scott

• Decision Date: 25 January 1977
• Docket Number: Civ. A. No. 76 M 910.
• Parties: Robert D. HAMM, Plaintiff, v. Rex H. SCOTT, Individually and as Chief Judge of the 20th Judicial District of the State of Colorado, et al., Defendants.
• Court: U.S. District Court — District of Colorado

426 F. Supp. 950

Robert D. HAMM, Plaintiff, v. Rex H. SCOTT, Individually and as Chief Judge of the 20th Judicial District of the State of Colorado, et al., Defendants.

Civ. A. No. 76 M 910.

United States District Court, D. Colorado.

January 25, 1977.

COPYRIGHT MATERIAL OMITTED

James R. Gilsdorf, Denver, Colo., and Robert F. Moreland, Boulder, Colo., for plaintiff.

Janice L. Burnett, First Asst. Atty. Gen., Litigation Section, Denver, Colo., Thomas V. Holland, Spec. Asst. Atty. Gen., Human Resources Section, and David R. Brougham, Yegge, Hall & Evans, Denver, Colo., for defendants.

FINDINGS, CONCLUSIONS AND ORDER

MATSCH, District Judge.

Robert D. Hamm seeks relief under the limited jurisdiction granted by 28 U.S.C. § 1343(3) and (4) and 42 U.S.C. § 1983 upon the claim that the termination of his employment as chief juvenile probation officer for the 20th Judicial District of the State of Colorado was a deprivation of his property without due process of law, in violation of the protection given by the Fourteenth Amendment to the Constitution of the United States. The evidence taken at a hearing on the plaintiff's motion for preliminary injunction established the facts upon which the claim is based.

After service as a student volunteer, Robert D. Hamm was appointed as a probation officer for the 20th Judicial District in October, 1967, and four years later he was named the chief juvenile probation officer for that court. During the time of his employment, Mr. Hamm was working under the direction and supervision of Judge Horace Holmes, the district judge assigned to juvenile matters. The official duties of a chief probation officer as set out in the applicable job description include the following:

Maintains cooperative relationship with state and local welfare and social service agencies, institutions, and law enforcement agencies, and relates the activities of the department to their services; participates in coordinating of the department to their services; participates in coordinating councils, committees, and other groups interested in probation or crime prevention.

The Honorable Rex H. Scott became a judge of the 20th Judicial District on July 1, 1970, and he was named chief judge of that district in January, 1975. On May 4, 1976, Judge Scott was in possession of copies of correspondence and memoranda concerning the conduct of Mr. Hamm in his official capacity and his relationship with several social service agencies. This correspondence included an exchange of letters with a high school principal in March, 1976. Judge Scott took copies of these documents to Judge Holmes on the morning of May 4, 1976 with a request that Judge Holmes obtain Mr. Hamm's resignation or terminate his employment. Judge Holmes declined to take that action, and Judge Scott then asked Judge Holmes to give the copies to the plaintiff.

When he was informed that Judge Scott wanted a resignation or termination of employment, Mr. Hamm asked to see Judge Scott and, at about 11:30 A.M., they met in Judge Scott's chambers. At that meeting, Mr. Hamm denied the accusations in the letters. Judge Scott told the plaintiff that he should submit his resignation or be discharged by 4 P.M. that day. Mr. Hamm asked for more time, and he asked for an opportunity to bring in agency directors and other persons to make statements on his behalf. Judge Scott adhered to the 4 P.M. deadline. Mr. Hamm did return to Judge Scott's chambers at 4 P.M. on that same day and submitted a handwritten statement which generally denied all accusations and in which Mr. Hamm refused resignation. After reading that document, Judge Scott told Mr. Hamm that he was dismissed, and a letter of termination, signed by Judge Scott, was given to the plaintiff. In that letter, Judge Scott set forth the following reasons for termination.

1. Failure to comply with a reasonable and proper assignment from an authorized supervisor.

2. Documented inefficiency, incompetency, in the performance of duties, i.e. that you have been a negative and alienating force with the youth serving agencies.

3. Conduct unbecoming a state judicial department employee.

Article VI, Section 5(2) of the Colorado Constitution provides that the chief justice is the "executive head" of the judicial system of that state. Section 5(4) of the same article provides that the chief judge of each district shall be appointed by and serve at the pleasure of the chief justice and that each chief judge shall have such administrative powers as shall be delegated to him by the chief justice. On August 27, 1971, Chief Justice Edward E. Pringle executed a written delegation of authority to all chief judges. That delegation was a very broad grant of administrative power, including the authority to appoint and remove personnel, excepting confidential employees of a judge.

The terms and conditions of employment of the employees of the executive branch of Colorado's government are established by a merit personnel system under Article XII, Section 13 of the state's constitution. Those provisions do not apply to those who work in the judicial department. Subparagraph (3) of Section 13 provides:

(3) Officers and employees within the judicial department, other than judges and justices, may be included within the personnel system of the state upon determination by the supreme court, sitting en banc, that such would be in the best interests of the state.

The Colorado General Assembly has, by statute, provided for the establishment of a personnel classification and compensation plan for all courts pursuant to rules adopted by the Supreme Court of Colorado. 1973 C.R.S. § 13-3-105. Subsection (4) of that section reads as follows:

(4) To the end that all state employees are treated generally in a similar manner, the supreme court, in promulgating rules as set forth in this section, shall take into consideration the compensation and classification plans, vacation and sick leave provisions, and other conditions of employment applicable to employees of the executive and legislative departments.

The Colorado Supreme Court did adopt personnel rules in 1970. Under those rules, there was no right of review of any personnel decision affecting supervisory positions. The plaintiff here was placed in a supervisory position in 1971.

The rules were rewritten and readopted by the Supreme Court with an effective date of January 1, 1975, and designated Colorado Judicial System Personnel Rules (CJSPR). The plaintiff here was a "certified employee" under those rules, and under Rule 26(a) such an employee may be dismissed for any of the reasons enumerated in Rule 25(d). That rule enumerates grounds which include those set forth in the termination letter issued by Chief Judge Scott.

Rule 45 establishes a Board of Review having jurisdiction over requests for review of discharges and other personnel actions. Rule 46 describes the right of review given to certified employees, and subsection (b)(2) expressly excludes a number of positions from that right of review. Chief probation officers are among those excluded positions.

Mr. Hamm sought to obtain a hearing before the Board of Review. A review board hearing was denied with the approval of Chief Justice Pringle upon the basis of the exclusion in Rule 46.

Mr. Hamm had no written contract of employment and there is nothing in evidence to support a finding of any express oral agreement or promise of any term or tenure.

I.

The plaintiff's principal contention here is that the personnel rules created an objective expectation of tenure which should be characterized as a property interest subject to due process protection on the authority of Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); and Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).

In Roth, an assistant professor of political science at a public university had been hired for a one-year fixed term of employment pursuant to a written contract. He had no tenure and there were no statutory or administrative standards of eligibility for reemployment. After he had been openly critical of the school administration, the teacher was notified that he would not be employed for the following academic year. He sued, alleging that he had been punished for his criticism in denial of his First Amendment freedom, and he asserted a right to procedural due process. The district court ordered a partial summary judgment for the plaintiff on the claim of entitlement to procedural due process, which, the court held, required a statement of reasons for non-hiring and an opportunity for a hearing on those reasons. Roth v. Board of Regents, 310 F.Supp. 972 (W.D.Wis.1970). That result was affirmed in Roth v. Board of Regents, 446 F.2d 806 (7th Cir. 1971).

A majority of the Supreme Court reversed the order on summary judgment, observing that the only question presented was whether the teacher had a constitutional right to a statement of reasons and a hearing on the decision not to rehire him for another year. In holding that he did not, Justice Stewart concluded that a determination of the nature or character of the teacher's interest was controlling of whether it came within the Fourteenth Amendment's protection of liberty and property. Because the district court had stayed any development of the issues on the claim of retaliation for the exercise of freedom of speech, that allegation was not before the Supreme Court. The Supreme Court's holding in Roth was that a teacher who had not been rehired for one year at one public university had no protectable interest in reemployment without proof of something more.

The Sindermann case came to the Supreme Court differently. There, the district court granted a summary judgment for the defendants, regents of a public junior college, who had failed to renew the plaintiff's one-year employment...