Lewis v. Blackburn

• Decision Date: 17 May 1984
• Docket Number: Nos. 83-1040,s. 83-1040
• Citation: 734 F.2d 1000
• Parties: Georgia J. LEWIS, Appellee, v. R. Max BLACKBURN, Appellant, and Frank W. Snepp, Defendant. North Carolina Civil Liberties Union, Amicus Curiae/E. Georgia J. LEWIS, Appellee, v. R. Max BLACKBURN, Defendant, and Frank W. Snepp, Appellant. North Carolina Civil Liberties Union, Amicus Curiae/E. (L), 83-1041.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1000

734 F.2d 1000

Georgia J. LEWIS, Appellee, v. R. Max BLACKBURN, Appellant, and Frank W. Snepp, Defendant.

North Carolina Civil Liberties Union, Amicus Curiae/E.

Georgia J. LEWIS, Appellee, v. R. Max BLACKBURN, Defendant, and Frank W. Snepp, Appellant.

North Carolina Civil Liberties Union, Amicus Curiae/E.

Nos. 83-1040(L), 83-1041.

United States Court of Appeals Fourth Circuit.

Argued March 7, 1983.

Decided May 17, 1984.

Harry H. Harkins, Jr., Asst. Atty. Gen., Millard R. Rich, Jr., Deputy Atty. Gen., Raleigh, N.C. (Rufus L. Edmisten, Atty. Gen., Jane S. Barkley, Raleigh, N.C., on brief), for appellants.

George Daly, Charlotte, N.C., for appellee.

Norman B. Smith, Greensboro, N.C., Daniel H. Pollitt, Univ. of North Carolina, School of Law, and Dean Shangler and Jay Trehy, Third Year Law Students on brief as amicus curiae.

Before WINTER, Chief Judge, ERVIN, Circuit Judge, and ALDRICH, ^* Senior Circuit Judge.

HARRISON L. WINTER, Chief Judge:

Since August, 1978, Georgia Lewis has served as a magistrate in the state courts of Mecklenburg County, North Carolina. Under Article IV, Sec. 10 of the North Carolina Constitution, magistrates are appointed every two years by the senior resident superior court judge of the county from a list of nominations submitted by the clerk of superior court; once appointed, magistrates serve as officers of the county district court and report to the chief district judge. N.C.Gen.Stat. Secs. 7A-170-171.

In the summer of 1982, following a dispute over job assignments with Max Blackburn, the clerk of superior court, Lewis learned she would not be renominated by Blackburn for the new term of office commencing January 1, 1983. She promptly filed suit under 42 U.S.C. Sec. 1983, contending primarily that Blackburn's refusal to renominate her resulted from the exercise of her First Amendment right of free speech. ¹ Later, the senior resident superior court judge, Frank Snepp, was added as a defendant after he refused to reappoint Lewis as a magistrate. The district court ultimately found in Lewis's favor, 555 F.Supp. 713 (W.D.N.C.), and ordered Lewis's immediate reappointment. That order was stayed by us pending appeal. We now vacate that order and affirm.

I.

The facts of this case are set out in exacting detail in the opinion of the district court. We need only to summarize them:

Georgia Lewis was appointed a Mecklenburg County magistrate in 1978 to fill a vacant position. She was reappointed for a regular biennial term from January 1, 1979, to December 31, 1980. Her appointment was again renewed in 1980 for the period from January 1, 1981, to December 31, 1982. In the summer of 1982, she had major responsibility for the small claims docket of the district court.

On July 13, 1982, Max Blackburn, the clerk of superior court, sent a memorandum to all civil trial magistrates ordering them to begin microfilming small claims documents in addition to other microfilming duties already handled by magistrates. Blackburn claimed authority to issue this directive under the "Record Keeping Manual" of the State Administrative Office of the Courts and pursuant to his supposed supervisory authority over record keeping by magistrates. See N.C.Gen.Stat. Sec. 7A-175. However, the lawfulness of Blackburn's directive is hotly contested by the parties. Lewis strongly protested this additional work burden, and she carried her objection to the chief district court judge. He advised her to speak to the senior resident superior court judge for Mecklenburg County, defendant Judge Frank Snepp, to the state Administrative Office and also to state legislators who could procure more money for the court system. Accordingly, she took the matter to Judge Snepp and to North Carolina State Representatives Parks Helms and Louise Brennan and local officials to complain of Blackburn's assignment, to question Blackburn's authority over her, and to request that additional magistrates be allocated to Mecklenburg County by the General Assembly. All those to whom Lewis spoke felt that Blackburn had statutory authority to require the additional work, and starting in August, 1982, Lewis complied with the directive (although she still protests its validity).

On September 8, 1982, Blackburn wrote Lewis informing her that "since you have had difficulty in working with departments with important responsibilities and have refused to keep records as prescribed by the 'Record Keeping Manual,' I cannot consider nominating you to the office of magistrate for another term."

Lewis immediately filed suit in federal court, principally alleging that Blackburn's decision not to reappoint her violated her First Amendment rights to freedom of speech and to petition the government for a redress of grievances. Lewis charged that but for her speech critical of Blackburn regarding the microfilming assignment, Blackburn "would have placed her name first on the list of nominees, thereby under prevailing custom guaranteeing her reappointment."

A hearing was held on November 22, 1982, after which the district court ruled that Blackburn had violated Lewis's First Amendment rights. The district court specifically found that certain prior complaints from lawyers and the general public about Lewis were not the "genuine reasons" behind Blackburn's decision not to renominate her, contrary to Blackburn's assertions. The district court ordered Blackburn to nominate Lewis for reappointment and to indicate to Superior Court Judge Frank Snepp, who was to make the final selection of magistrates, that the nomination was "for real." Blackburn promptly complied, submitting to Snepp, as required by law, Lewis's name and that of one other nominee for the same position, Gerald Frederick.

On December 28, 1982, Judge Snepp declined to appoint Lewis, naming Frederick instead. In a letter to Blackburn, Judge Snepp wrote:

Since you were ordered by Judge McMillan to use this specific language, I can only conclude that this is an attempt by him to influence, if not coerce me, to appoint Ms. Lewis regardless of my judgment as to whether it would be in the best interest of the magistrate system to do so. Although it is my general policy to reappoint magistrates who have rendered satisfactory service, in order to give some assurance of tenure, I am deeply and sincerely opposed to unwarranted intrusion upon the legitimate responsibilities and duties of a state judge by federal courts. I regard the language used in Judge McMillan's order ... as such an intrusion ... I therefore decline as a matter of principle to reappoint Ms. Lewis.

He further indicated that plaintiff was not appointed because "the plaintiff was a malcontent, whose appointment to another term would not be in the best interest of the court system." Shortly thereafter, Judge Snepp was joined as a defendant in this case. After a hearing on January 10, 1983, at which Judge Snepp testified at length, the district court found that but for the microfilming incident, Judge Snepp would have reappointed Lewis. The district court thereupon held that Judge Snepp had violated Lewis's First Amendment rights and ordered him to appoint Lewis to a magistrate's position at once. From that order the defendants appeal.

II.

Before addressing the merits of this case, we first consider defendants' contention that under the principles stated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and subsequent decisions, the district court should have abstained from interfering in certain state judicial proceedings. We note at the outset that defendants made no claim of abstention in the district court. We would be justified in refusing to consider the defense because a party should not be permitted to withhold a claim at trial and invoke it only on appeal when the result of the trial is adverse to him. But in any event, we think that the contention is lacking in merit.

The Younger principles, in our view, apply only when there are ongoing state criminal proceedings or state civil proceedings involving important state issues. In this case, the only "proceedings" is the decision by Judge Snepp whether or not to reappoint Lewis. The district court found this to be a ministerial, not a judicial, act. Moreover, the appointment decision was a unilateral, ex parte act, not an adversary proceeding which provided a forum for the airing and adjudication of Lewis's First Amendment claim. While North Carolina does provide state judicial process whereby Lewis can challenge Judge Snepp's alleged violation of her First Amendment rights, that fact is irrelevant. Under Younger, the deference which is due is to Judge Snepp's decision, not to any future proceedings which Lewis could institute. The availability of a state remedy goes to the question of whether exhaustion of state remedies is a prerequisite to a suit under 42 U.S.C. Sec. 1983, and it has been held that exhaustion is not required. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

In summary, because there is no currently pending proceeding that is capable of adjudicating Lewis's First Amendment claim, we hold that the principles of Younger do not apply. See Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). ²

III.

To begin our consideration of the merits, we discern no clear error in the district court's findings of fact pertaining to the defendants' motives. See Fed.R.Civ.P. 52(a). In particular, we offer no quarrel with the finding of fact that Blackburn declined to renominate Lewis because she spoke out against the microfilming assignment. 555 F.Supp. at 716. Similarly, we accept the district court's finding that Snepp refused to reappoint Lewis because of her vocal opposition to Blackburn's directive. Id. at 718.

Even if we assume that Lewis had no property interest in her position, ³ it is true that Blackburn or Judge Snepp could have refused to renominate and reappoint her for a foolish reason or...