Barrett v. Thomas
| Decision Date | 10 July 1981 |
| Docket Number | No. 79-3021,79-3021 |
| Citation | 649 F.2d 1193 |
| Parties | Benny B. BARRETT, Plaintiff-Appellee Cross-Appellant, v. Carl THOMAS, Sheriff, Defendant-Appellant Cross-Appellee. . Unit A |
| Court | U.S. Court of Appeals — Fifth Circuit |
Henry M. Wade, Criminal Dist. Atty., Dallas County Texas, Dallas, Sue L. Lagarde, Asst. Dist. Atty., Dallas, Tex., for defendant-appellant, cross-appellee.
James C. Barber, Steven B. Thorpe, Dallas, Tex., Charles J. Baldree, Le Card, Tex., for plaintiff-appellee, cross-appellant.
Appeals from the United States District Court for the Northern District of Texas.
Before BROWN, THORNBERRY and WILLIAMS, Circuit Judges.
This appeal, argued and decided in tandem with Collins v. Thomas, 649 F.2d 1203 (5th Cir. 1981), arises from disputed personnel actions taken by Carl Thomas during his tenure as Sheriff of Dallas County, Texas. It addresses the constitutionality of certain rules regulating the conduct of employees in the Dallas County Sheriffs' Office, the merits of 42 U.S.C. § 1983 claims brought by former deputy sheriffs alleging that they were demoted or fired by Thomas for their political affiliations, and Dallas County's liability for a 42 U.S.C. § 1988 attorneys' fees award against Sheriff Thomas. We vacate the district court's injunction against § 15 of the Sheriff's Office Code of Conduct; we believe § 15 is facially unobjectionable and constitutional as applied here. We reverse the district court's determination that Dallas County is not liable for the § 1988 award against Thomas and render judgment holding the County jointly and severally liable with the Sheriff for the attorneys' fees award. We affirm the district court's disposition of the remaining issues presented on appeal.
Benny Bob Barrett joined the Dallas County Sheriff's Office ("the department") as a patrolman in May 1966. Barrett had compiled a solid work record and advanced to the position of sergeant in the Criminal Investigation Division when Republican Carl Thomas defeated Clarence Jones, the Democratic incumbent, in the November 1976 election. After taking office, Thomas transferred Barrett, a Jones supporter, laterally to the Civil Warrants Division in March 1977. Later, in August of the same year, he was demoted to the position of detention officer.
Peeved by his demotion, which entailed reductions in pay, benefits, and prestige, Barrett told a newspaper reporter on August 20 that Thomas was a "paranoid" person with a "Hitler mentality". These remarks were quoted verbatim in a newspaper story published the same day. On August 22, Barrett went before a public meeting of the Dallas County Commissioners' Court to criticize Thomas for conducting a political purge in the Sheriff's Office. On August 23, Thomas fired Barrett. The discharge notice stated that Barrett's published remarks violated Dallas County Sheriff's Office Code of Conduct §§ 12 & 15. 1
Barrett brought this § 1983 class action on behalf of all sheriff's office employees who had been demoted or fired by Sheriff Thomas for supporting Sheriff Jones in the 1976 election. His original complaint alleged that, in firing or demoting employees who did not support him in the 1976 election, Thomas abridged first amendment speech and associational rights. The complaint also challenged the constitutionality of personnel regulations governing public statements by Sheriff's Office employees, see n. 1, supra, on grounds of vagueness, overbreadth, and as impermissible prior restraints on protected speech. 2
After issuing a preliminary injunction against enforcement of the challenged personnel regulations and certifying the plaintiff class, the trial judge presided over a jury trial on the merits in January 1979. In response to a series of interrogatories, the jury found that political considerations had motivated Thomas to transfer, demote, or discharge various plaintiff class members. 3 The jury determined that political considerations were a motivating factor in Barrett's transfer and demotion, but that Thomas did not discharge Barrett for political reasons. The jury was instructed that the scope of law enforcement officers' free speech rights is circumscribed by a balancing test weighing the public interest in regulating such speech against the speaker's private interest in making the comments. Based on this instruction and the Sheriff's concession that Barrett was fired for calling Thomas a "paranoid" person with a "Hitler mentality," the jury determined that Barrett's criticism of Thomas was not protected speech.
On the basis of these jury findings, the district court struck down each of the challenged personnel regulations for vagueness and overbreadth. The court permanently enjoined further enforcement of the regulations and decreed that certain members of the plaintiff class who were fired or demoted for their political affiliations were entitled to reinstatement with back pay. The trial judge accepted the jury's verdict that Thomas had not fired Barrett for his political associations and that Barrett's remarks to the press were constitutionally unprotected. 4
While the court found that Barrett was entitled to back pay compensating for his politically-inspired demotion, it denied him reinstatement to his former position. Attorney's fees were awarded to the prevailing plaintiffs. An April date was set for a hearing to fix the amounts of back pay and interest due each individual member of the plaintiff class and to review the attorney's fee request filed by the plaintiffs' attorney.
One week before the scheduled April hearing more than three months after the jury trial Dallas County moved to intervene. The County argued that an adjudication of Thomas' liability in its absence would impair its interest in protecting the County treasury against the plaintiffs' claims. The plaintiffs opposed Dallas County's intervention, contending that the County's motion was untimely, that the County's expressed disclaimer of liability for the sheriff's personnel decisions negated its assertion of an interest in the outcome of the April hearing, and that the County interests were adequately represented by the county district attorney's representation of the sheriff, who shared the County's interest in minimizing liability to the plaintiffs. Stressing that County intervention would pose the threat of a prejudicial delay at a time when the lawsuit was nearly resolved, the district court denied the motion to intervene. 5
The district court then proceeded with the scheduled April hearing. In a judgment specifying the terms of relief granted to the members of the plaintiff class, the court, on May 20, ordered reinstatement of nine demoted or discharged employees and fixed the amounts of back pay and interest due fourteen members of the plaintiff class. The court fixed the plaintiffs' attorney fee award at $34,015, but specified that the judgment "is entered against Carl Thomas, Sheriff, and draws no conclusions concerning the liability, if any, of the County of Dallas, Texas, for complying with the provisions of the judgment." Subsequently, in August, Judge Porter decided that the attorney's fees award would not lie against County funds, apparently because the plaintiff had affirmatively opposed the County's attempt to intervene prior to the April hearing.
On this appeal, the Dallas County District Attorney contends, inter alia, 6 that, (1) the personnel regulations enjoined by the district court are constitutional; (2) the sheriff's personnel actions were permissible; (3) the Sheriff is immune from this lawsuit; and (4) the attorney's fees award was improper because the plaintiffs did not "prevail" as required by 42 U.S.C. § 1988. The plaintiffs cross-appeal the trial court's determination that Dallas County is not liable for the attorney's fees award.
The district court struck down each of the four Sheriff's Office personnel rules, see n. 1 supra, challenged by the plaintiffs for overbreadth and vagueness. 7 Of course, either vagueness or overbreadth standing alone would present a fatal defect in the regulations. While the district court may well have been correct in concluding that three of the challenged regulations are "so vague that men of common intelligence must necessarily guess at (their) meaning and differ as to (their) application," Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1925), we do not reach that question with respect to § 12 of the Sheriff's Office Code of Conduct or General Rules 1 and 2. We affirm the judgment below invalidating these regulations on the premise that these three "sweep unnecessarily broadly and thereby invade the area of protected freedom." NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 1313, 12 L.Ed.2d 325 (1964).
Section 15, however, is a different story. We find the prohibitions on "conduct subversive of the good order or discipline of the department" and the use of "abusive, insulting or indecent language to a supervisory officer" facially constitutional in the context of rules regulating police department conduct. Cf. Kannisto v. City and County of San Francisco, 541 F.2d 841 (9th Cir. 1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1552, 51 L.Ed.2d 775 (1977) (). While we can envision circumstances in which § 15 would be unconstitutionally vague or overbroad as applied, 8 this case does not present that problem. We are reluctant to circumscribe narrowly the sheriff's discretion in promoting the legitimate ends of "discipline, esprit de corps, and uniformity" among his law enforcement officers. Kelley v. Johnson, 425 U.S. 238, 246, 96 S.Ct. 1440, 1445, 47 L.Ed.2d 708 (1976). 9 Therefo...
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