714 F.2d 1407 (8th Cir. 1983), 82-1338, Hughes v. Whitmer

Docket Nº:82-1338 and 82-1538.
Citation:714 F.2d 1407
Party Name:William E. HUGHES, Appellee, v. Alan S. WHITMER, Appellant.
Case Date:August 04, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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714 F.2d 1407 (8th Cir. 1983)

William E. HUGHES, Appellee,

v.

Alan S. WHITMER, Appellant.

Nos. 82-1338 and 82-1538.

United States Court of Appeals, Eighth Circuit

August 4, 1983

Submitted Oct. 14, 1982.

Rehearing and Rehearing En Banc Denied Sept. 15, 1983.

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John Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Mo., for appellant.

Alex Bartlett, Roger K. Toppins, Bartlett, Venters & Pletz, P.C., Jefferson City, Mo., R. Jack Garrett, R. David Ray, Law Offices of R. Jack Garrett, West Plains, Mo., for appellee.

Before McMILLIAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

The Superintendent of the Missouri Highway Patrol (Superintendent) 1 appeals from a final judgment entered in the District Court for the Western District of Missouri permanently enjoining the Missouri Highway Patrol (Patrol) from transferring appellee Trooper William E. Hughes without first providing him with a due process name-clearing hearing. For reversal, the Superintendent argues that Trooper Hughes' transfer from a rural troop to an urban troop did not violate Hughes' fourteenth amendment rights because Hughes has no property or liberty interest in a

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particular geographic assignment within the Patrol. Although the district court did not specifically address Hughes' first amendment claim, Hughes urges on appeal that his first amendment rights were violated because the transfer was ordered to retaliate against him for his protected speech-related activities. For the reasons discussed below, we reverse the district court's judgment. 537 F.Supp. 93.

I. Factual Background

Trooper Hughes has been a member of the Patrol since 1970 and has spent almost all of his career assigned to Troop "G." Troop "G" is headquartered in Willow Springs, Missouri, and its members patrol the highways in the surrounding nine counties of south central Missouri. Hughes and his family have lived in Willow Springs during Hughes' ten-year tenure in Troop "G."

On Friday afternoon, October 16, 1981, Hughes was summoned to Troop "G" headquarters. When he arrived, Hughes was ushered into Captain McKee's office and told by Major Hoffman of Patrol headquarters that he was being transferred to Troop "C," at state expense, effective Monday, October 19, 1981. Troop "C" is a relatively urban assignment encompassing the counties surrounding the City of St. Louis. Its headquarters are in Kirkwood, Missouri, which is some 200 miles from Willow Springs.

Hughes reported for duty at Troop "C" on Monday, October 19, 1981, as ordered. Hughes was never notified officially of any complaint against him prior to the Superintendent's decision to order the transfer. Nor was Hughes given an opportunity to meet any of the charges against him or refute any of the factors which entered into the Superintendent's decision to transfer him. Hughes still has not received written reasons for his transfer. His transfer order merely states that he is being transferred at state expense from Troop "G" to Troop "C" effective October 19, 1981.

Superintendent Whitmer, the ultimate transferring authority, Major Hoffman, whom the Superintendent ultimately relied upon in making the transfer decision, and Captain McKee of Troop "G" testified that the transfer was made to resolve a debilitating troop morale problem resulting from an intense personality dispute between Hughes and Lt. Elmore. Lt. Elmore was in charge of staff functions at Troop "G" headquarters but was not in the chain of command over Hughes.

Major Hoffman, who conducted interviews with a number of Troop "G" patrolmen, concluded that the major source of the friction between Hughes and Elmore was Hughes' investigation of Elmore's twenty-four-year-old son. Hughes suspected that Elmore's son was involved in illicit drug trafficking. Hughes reported these suspicions to Captain McKee, who in turn told Hughes to continue the investigation. As Hughes continued his investigation, he suspected that Lt. Elmore was leaking information about the investigation to his son. Hughes apparently told other Troop "G" officers about his suspicions regarding Lt. Elmore and made accusations regarding Elmore's son's involvement in drug activities. Hughes also told a Willow Springs neighbor that the neighbor's sixteen-year-old daughter had been seen at Lt. Elmore's house with Elmore's son. Elmore's son was married to another woman at the time. During their interviews with Hoffman, various Troop "G" officers expressed the view that Hughes had become too personally involved in Elmore's family affairs, hindering his own job performance and causing disharmony within the Troop. After learning about Hughes' various investigations and accusations, Lt. Elmore reciprocated by conducting his own investigation of Hughes and by indicating his intention to file a defamation of character suit against Hughes.

At trial Hughes testified that he was transferred in retaliation for the Elmore investigation and his various other investigations. One of these other investigations involved the Mountain View Airport. Hughes was approached by three Mountain View citizens with information about suspicious late night airplane landings and takeoffs on a remote segment of the airport's

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runway. Hughes testified that he received information that a pilot had been offered a large sum of money to fly drugs in and out of the Mountain View Airport. Hughes passed this information to Captain McKee, who encouraged Hughes to conduct a surveillance at the airport. Later, a state representative whose plane was housed at the Mountain View Airport complained about Hughes' surveillance to Superintendent Whitmer. Despite this complaint, Captain McKee encouraged Hughes to continue the investigation and, at Hughes' request, placed a call to Jefferson City for special night surveillance equipment to aid in identifying the airplanes making night flights. Hughes testified that soon after he made the request for surveillance equipment, the suspicious night flights ceased. Hughes never again requested or received the night surveillance equipment. Hughes testified that he spent an entire year on his airport surveillance without finding any tangible evidence of impropriety.

Hughes also testified that he had received information that Captain McKee was involved in a ticket-fixing incident some six years ago. Captain McKee denied having ever fixed any traffic ticket. Hughes also testified that he had received information that Captain McKee and Lt. Hickman were involved in a cover-up of a prisoner abuse incident. Hughes referred to a report written by Trooper Mitchell and Sergeant Zorsch indicating that an officer had allegedly struck an arrestee. Captain McKee allegedly concealed this report and, after interviewing the officer involved in the alleged beating, collaborated with Lt. Hickman in writing another report discrediting the arrestee's allegations. Sergeant Zorsch testified that while he believed some of the arrestee's allegations were true, Captain McKee could have reasonably reached a different conclusion and was not trying to coverup something.

Hughes testified that he told his wealthy industrialist friend, Claud Trieman, a member of the Governor's Crime Commission, about the alleged ticket fixing and prisoner abuse incidents. 2 Hughes did so in the hope that his friend could intercede with the higher echelon at Patrol headquarters to initiate some reform in Troop "G." Superintendent Whitmer and Major Hoffman testified that they were completely unaware of Hughes' suspicions of improprieties in Troop "G." Hughes testified that he never told Hoffman or anybody else within the Patrol's command staff about his suspicions.

Over the past few years Hughes also became involved in other incidents of some concern to the community and to his fellow officers. In 1977, while patrolling a wooded area, Hughes discovered two teachers engaged in a "compromising assignation." Hughes, while off-duty, reported this encounter to the school board. In 1979, Hughes was reprimanded for openly accusing a local postal employee of slashing the tires of Hughes' car without sufficient evidence to support his accusations. These accusations were made while Hughes was off-duty. Hughes was also criticized by some of his fellow officers for spending too much time patrolling the Mountain View area so that he could associate with his wealthy industrialist friend, Claud Trieman, while on duty and for filing baseless written reports accusing radio operators of dereliction of duty. Finally, some officers, including Lt. Hickman and Captain McKee, suspected that Hughes furnished a local sheriff with a copy of a Patrol investigation of the sheriff's alleged involvement in a timber theft.

On October 3, 1981, Lt. Elmore met with Superintendent Whitmer and suggested that Hughes be transferred to Troop "C." Superintendent Whitmer testified, however, that no decision concerning Hughes was reached at this meeting. It is unclear from the record when the decision to transfer Hughes was actually reached. Superintendent Whitmer was uncertain about the exact date, but surmised it was Thursday, October 15, 1981. Major Hoffman testified that the decision was made the morning of

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October 16, 1981, the day Hughes was told of the decision.

In any event, on October 4, Elmore returned to Troop "G" and told several troopers that he was having Hughes transferred to Troop "C." Dissension then began to mount in Troop "G" as troopers took sides over the rumored transfer of Hughes. Around October 7, Captain McKee testified that he reported this...

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