745 F.2d 501 (8th Cir. 1984), 83-2127, Barnes v. Bosley

Docket Nº:83-2127, 83-2178 and 83-2179.
Citation:745 F.2d 501
Party Name:Shirley BARNES, Frances J. McElroy and Murrell Thomas, Appellees, v. Freeman (Teek) BOSLEY and Paula Carter, Appellants. Shirley BARNES, Frances J. McElroy, Appellants, and Murrell Thomas, v. Freeman (Teek) BOSLEY and Paula Carter, Appellees. Shirley BARNES, Frances J. McElroy and Murrell Thomas, Appellant, v. Freeman (Teek) BOSLEY and Paula Carter
Case Date:September 27, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 501

745 F.2d 501 (8th Cir. 1984)

Shirley BARNES, Frances J. McElroy and Murrell Thomas, Appellees,


Freeman (Teek) BOSLEY and Paula Carter, Appellants.

Shirley BARNES, Frances J. McElroy, Appellants,


Murrell Thomas,


Freeman (Teek) BOSLEY and Paula Carter, Appellees.

Shirley BARNES, Frances J. McElroy and Murrell Thomas, Appellant,


Freeman (Teek) BOSLEY and Paula Carter, Appellees.

Nos. 83-2127, 83-2178 and 83-2179.

United States Court of Appeals, Eighth Circuit

September 27, 1984

Submitted May 15, 1984.

Rehearing Denied Oct. 26, 1984.

Rehearing En Banc Denied Dec. 14, 1984.

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[Copyrighted Material Omitted]

Page 503

Bussey & Jordan, St. Louis, Mo., for appellants.

Charles R. Oldham, and Thomas E. Bauer, St. Louis, Mo., for Barnes, McElroy and Thomas.

Before HEANEY, BRIGHT and JOHN R. GIBSON, Circuit Judges.

HEANEY, Circuit Judge.

This action arose out of the dismissals of Shirley Barnes, Frances J. McElroy and Murrell Thomas from their positions as employees in the Clerk's Office of the Circuit Court of the City of St. Louis. The plaintiffs, all political supporters of the previous Clerk of Court, were dismissed when the newly elected Clerk took office. They subsequently filed a complaint alleging violations of their first, fifth and fourteenth amendment rights under 42 U.S.C. Sec. 1983. They also alleged a conspiracy to violate their civil rights under 42 U.S.C. Secs. 1985 and 1986.

The district court found all the plaintiffs were fired because of their political affiliations, but that only McElroy and Barnes were protected by the first amendment because they were dismissed from jobs in which political affiliation was not an appropriate requirement. The court found that Thomas had no first amendment protection because he was transferred into a ministerial position just before the new clerk took office to avoid dismissal. The court also found against the plaintiffs on their other claims. The defendants appeal the judgment in favor of Barnes and McElroy; the plaintiffs cross-appeal the judgment against Thomas and their other claims, and the award of attorneys' fees.

Because we find the district court used the proper legal standard and its findings were not clearly erroneous, we affirm the judgment as to McElroy and Barnes. We view Thomas's transfer from an unprotected position to a protected position as irrelevant to the first amendment analysis and reverse the judgment against him. We increase the award of attorneys' fees to take into account the success of Thomas's claim.


Barnes, McElroy and Thomas were employed as Deputy Circuit Clerks for the St. Louis Circuit Court prior to January 3, 1983. All three were long-term employees who had been hired under the patronage system at low level jobs and had worked their way up into management positions. At the time of Barnes's dismissal, she was a Unit Manager I in charge of ten departments. McElroy started out as a janitor-messenger in 1963. He was promoted five times and was a Unit Manager II at the time of his dismissal. Thomas also began as a janitor-messenger and had worked for the Clerk's Office for over nineteen years.

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He had been promoted to Administrative Assistant I. Two weeks prior to the changeover in circuit court clerks, he was transferred from Administrative Assistant I to Courtroom Clerk III, a demotion in responsibility but with no change in salary.

Joseph P. Roddy was the Circuit Court Clerk, an elected position, from 1968 to 1983. All three plaintiffs were members of the "Roddy faction" within the Democratic Party in the City of St. Louis: the defendants stipulated that McElroy was politically affiliated with Roddy; Thomas had been active in Roddy's Seventeenth Ward organization since 1972; Barnes had been Roddy's campaign treasurer from 1973 through December, 1982. In August of 1982, Freeman Bosley, Jr., defeated Roddy in the Democratic primary. Bosley subsequently won the general election and was sworn into office on January 1, 1983.

During the time between the general election in November of 1982 and January 1, 1983, Bosley appointed a transition team to review the operations of the Clerk's Office. The team members were Frank McGhee, who had worked in Bosley's phone bank during the campaign; Paula Carter, office manager for Bosley's campaign headquarters; Jimmy Edwards, Bosley's legal adviser during the campaign; and Charles Hoehn, campaign manager for a third candidate during the primary who later advised Bosley in his campaign. After interviewing over forty employees in the office, the transition team recommended firing the three plaintiffs and Roddy's legal adviser, Thomas Bauer. Bosley fired all of these people three days after taking office. Almost immediately, he appointed Hoehn to McElroy's position, Carter to Thomas's position, and McGhee to Barnes's position. The plaintiffs then instituted this action.

The district court held that the plaintiffs had succeeded in proving that their political affiliation with Roddy was the sole reason they were dismissed. Although the defendants had contended the plaintiffs were incompetent and their replacements were better qualified, the district court specifically found that Bosley would not have fired the plaintiffs if they had not supported the Roddy faction. The court acknowledged that the plaintiffs had held management and supervisory positions, but held that political affiliation was irrelevant in exercising the circumscribed discretion attendant to those positions. McElroy and Barnes thus succeeded in their first amendment claim. As to Thomas, however, the court held his transfer should be disregarded because it was made to avoid possible dismissal. The court deemed the Administrative I position held by Thomas before the transfer as one in which political affiliation was an appropriate requirement. The court also entered judgment in favor of the defendants on the plaintiffs' due process and sections 1985 and 1986 claims. McElroy and Barnes were ordered reinstated with back pay and the court subsequently awarded attorneys' fees in the amount of $12,700.


The defendants claim: (1) that the district court erred in failing to balance the plaintiffs' first amendment rights against the government's interest in efficient management; (2) that the district court's finding that the plaintiffs were terminated for political reasons is clearly erroneous; and (3) that even if the plaintiffs were terminated for political reasons, the district court clearly erred in finding that political affiliation was not an appropriate requirement for their positions. In his cross-appeal, Thomas contends the district court should not have disregarded his transfer in determining whether he too occupied a protected position at the time he was dismissed. We disagree with the defendants' assertions, but agree with Thomas.

A. Legal Precedents.

The seminal Supreme Court cases dealing with public employee terminations based on political affiliations are Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkle, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574

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(1980). In Elrod, a plurality of the Court held that the newly elected Sheriff of Cook County, Illinois, could not terminate employees merely because they were not members of the Democratic Party and failed to obtain the sponsorship of one of its leaders. Elrod v. Burns, supra, 427 U.S. at 351, 96 S.Ct. at 2678. Writing for the plurality, Justice Brennan reasoned that because the sheriff's employees had to join and work for the Democratic Party in order to retain their jobs, the system necessarily coerced employees into compromising their true beliefs. In his view, this use of governmental power to prescribe political beliefs struck at the heart of the first amendment and thus the patronage system in its blanket application to all employees at all levels of government work was unconstitutional. Id. at 356-357, 96 S.Ct. at 2681-2682.

Justice Brennan further reasoned that an unconstitutional condition may not be placed on the receipt of a public benefit. See Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972); Keyishian v. Board of Regents, 385 U.S. 589, 605, 87 S.Ct. 675, 684, 17 L.Ed.2d 629 (1967). In Perry, the Court stated:

For at least a quarter-century, this Court has made clear that even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which [it] could not command directly." * * * Such interference with constitutional rights is impermissible.

Perry v. Sindermann, supra, 408 U.S. at 597, 92 S.Ct. at 2697 (citation omitted).

Justice Brennan concluded that a person's political beliefs could not be the sole basis for depriving him or her of continued public employment unless the government could demonstrate an overriding interest. Elrod v. Burns, supra, 427 U.S. at 368, 96 S.Ct. at 2687. Justice Stewart's concurring opinion accepted this latter ground for invalidating dismissals based on political affiliation.

As both opinions in Elrod recognized, party affiliation may sometimes be an acceptable requirement for...

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