Bennis v. Gable

• Decision Date: 30 July 1987
• Docket Number: No. 86-1596,86-1596
• Parties: Thomas F. BENNIS, Roger J. MacLean v. Carson S. GABLE, Joseph S. Daddona, City of Allentown, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 723

823 F.2d 723

2 Indiv.Empl.Rts.Cas. 1325

Thomas F. BENNIS, Roger J. MacLean v. Carson S. GABLE, Joseph S. Daddona, City of Allentown, Appellants.

No. 86-1596.

United States Court of Appeals, Third Circuit.

Argued March 17, 1987.

Decided July 6, 1987.

Rehearing and Reharing In Banc Denied July 30, 1987.

Edward C. McCardle (argued), King, McCardle, Herman & Freund, Allentown, Pa., for Carson S. Gable.

Alan M. Black (argued), Black, Epstein, Prokup & McCarthy, Allentown, Pa., for Joseph S. Daddona and City of Allentown.

James T. Huber (argued), Allentown, Pa., for appellees.

Before HIGGINBOTHAM, MANSMANN, and ROSENN, Circuit Judges

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal raises a number of close questions growing out of the trial of a political patronage suit brought by the plaintiffs, two Allentown, Pennsylvania, policemen, against the Mayor, the Chief of Police, and the City of Allentown. Plaintiffs' theory at trial was that the defendants had violated the plaintiffs' constitutional and federal civil rights by demoting them from detective-sergeants to patrolmen in retaliation for their support of Mayor Daddona's political opposition in the 1977 and 1981 mayoral elections. Alternatively, the plaintiffs argued that they were demoted to make room for Daddona's political supporters. Although the interests at stake were important and the evidence considerable, we conclude that the district court impermissibly trespassed upon the jury's fact-finding function when it instructed that, as a matter of law, the plaintiffs had engaged in protected first amendment activity. We therefore vacate the district court's judgment and remand for a new trial. Further, although mindful of the general rule that an appellate court will not decide questions not necessary to a determination of the case, because several of the issues raised by this appeal are almost certain to resurface in a new trial, we discuss those issues as well.

I.

Joseph Daddona, a Democrat, was first elected mayor of the City of Allentown in 1973. As his chief of police, Daddona retained Carson Gable, then a Republican and chief of police under the former Republican administration. The plaintiffs, Thomas Bennis and Roger MacLean, were both hired as police officers in 1974, through a civil service hiring procedure.

Both plaintiffs claim to have known Daddona and Gable, and Bennis claims that his family had been neighbors and early supporters of Daddona. Bennis claims that a fallout between the families occurred sometime in 1976, and both plaintiffs allege that they supported the Republican candidate, Frank Fischl, in his successful unseating of Daddona in the 1977 mayoral election. As we shall develop further, the question of whether the plaintiffs did indeed actively support Fischl, or even whether they refused to support Daddona, was one of fact for the jury to decide.

In 1979 Bennis, along with fourteen others, applied for a promotion to the position of detective-sergeant. There were two positions available, and after reading all fifteen resumes and interviewing the six most promising candidates, a committee selected Bennis to fill one of the two available slots. MacLean also was promoted to the position of detective-sergeant in November 1981, after assisting the detective bureau in a child homicide investigation.

Daddona successfully ran in the 1981 democratic primary to regain the mayoralty, and was eventually elected in the November 1981 general election. At trial, both plaintiffs claimed to have supported Daddona's opposition in both elections. In particular, they claimed to have supported Democrat Louis Hershman in the primary election, and Republican Robert Smith in the general election. One of the major campaign issues, according to Daddona, was the lack of efficiency and low morale of the police department under Arthur Allender, who had succeeded Gable in the position of police chief in 1977.

Plaintiffs Bennis and MacLean testified that they first suspected on May 31, 1981, and early June 1981, respectively, that their alleged opposition to Daddona would have an impact upon them. Bennis testified that on May 31 Richard Zeller, an Allentown police officer, told him that the previous day Richard Gerencher, another Allentown police officer and son-in-law of Carson Gable, had been arguing with James Spang, head of security at the Allentown Fairgrounds. Apparently, Zeller overheard Gerencher tell Spang that "when Daddona comes back, heads are going to roll, your friends Bennis and MacLean are going to take a tumble." ¹ MacLean testified that he became aware of the incident when Bennis told him about it a few days later.

After Daddona's 1981 election, Gable, by now a registered Democrat, reassumed his duties as chief of police. Gable testified that shortly after the election Daddona asked him to make specific recommendations as to how to improve morale in the police department, and that in response to this request he made recommendations on, inter alia, demotions, reassignments of people, changes in platoon structure, and the addition of a night patrol. Most, though not all of Gable's recommendations were accepted by Daddona and in the end, twenty-four of 126 officers on the force were affected. Of the twenty-four, six, including the plaintiffs, were demoted. Nine demotions had been recommended.

Gable stated his reason for recommending plaintiffs' demotions in a January 1982 memorandum to Daddona:

There is every reason to believe that their conduct, individually and collectively, has been reprehensible on duty and off. This conduct led to public criticism of the Police Bureau and created a schism of our sworn officers which can never be tolerated. Morale is at a new low, and understandably so.

With respect to two other officers, Gable stated:

These men were promoted the last week in November 1981 and together with Roger MacLean (above) was simply a last ditch effort to help friends.

As a result of their demotions, plaintiffs' salaries were reduced by five and six percent, and they lost potential overtime.

After a six-day trial, the district court instructed the jury that as a matter of law the plaintiffs had engaged in protected first amendment activity, and submitted special interrogatories on other issues. The jury then found for the plaintiffs, specifically finding that plaintiffs' "political beliefs, expressions, and associations" were a "substantial or motivating factor" in their demotions, and that the defendants had not established by a preponderance of the evidence that the plaintiffs would have been demoted even if they had not engaged in protected activity. The jury also found that the actions of the individual defendants were an official act or policy of the City of Allentown, and awarded separate damages as follows: Bennis v. City, $30,000 compensatory; Bennis v. Daddona, $30,000 compensatory and $100,000 punitive; Bennis v. Gable, $15,000 compensatory and $40,000 punitive; MacLean v. City, $18,000 compensatory; MacLean v. Daddona, $26,500 compensatory and $100,000 punitive; MacLean v. Gable, $13,500 compensatory and $40,000 punitive.

The defendants presented timely motions for directed verdicts at the close of plaintiffs' evidence and again at the close of trial, both of which were denied. ² Defendants' post-trial motions under Fed.R.Civ.P. 50(b) and Fed.R.Civ.P. 59 were similarly denied by the district court in an exhaustive memorandum opinion. Then, following the denial of the post-trial motions, the district court ordered, in another memorandum opinion, that Bennis be reinstated ³ and that both plaintiffs' seniority rights be adjusted. The court also awarded $87,505.50 in attorney's fees, a figure arrived at by doubling the lodestar, at least in part because of the risk involved.

II.

In the course of instructing the jury that it was the plaintiffs' burden to establish that their activity was entitled to first amendment protection, the district court correctly explained that the plaintiffs' activity was entitled to first amendment protection if "it came within the guaranty of freedom of political belief, expression and association...." ⁴ See Branti v. Finkel, 445 U.S. 507, 513-17, 100 S.Ct. 1287, 1292, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 355-60, 96 S.Ct. 2673, 2680-83, 49 L.Ed.2d 547 (1976). The trial judge further charged, however:

I have concluded, Members of the Jury, as a matter of law that plaintiffs Bennis and MacLean engaged in protected first amendment activity. This activity included opposing Mayor Daddona and supporting his opponent in both 1981 and 1977 and associating with both other police officers who oppose Daddona and the prior administration.

On appeal, the defendants contend that this charge constituted error and assert, inter alia, that the nature of the plaintiffs' alleged private conversations and associations, if any, were controverted questions of fact.

As a general rule, we will review a district court's rulings on points for charge under the abuse of discretion standard. Link v. Mercedes-Benz of No. Am., Inc., 788 F.2d 918, 922 (3d Cir.1986). Once an instruction has been given, however, our standard of review changes. At that point, we generally ask ourselves whether, viewed in light of the evidence, the charge as a whole fairly and adequately submits the issues in the case to the jury, and reverse "only if the instruction was capable of confusing and thereby misleading the jury." Id. (quoting United States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1195 (3d Cir.1984), cert. denied, 470 U.S. 1029, 105 S.Ct. 1397, 84 L.Ed.2d 785 (1985)). On the other hand, a party who does not clearly and specifically object to a charge he believes to be erroneous waives the issue on appeal, unless the error was so "fundamental and highly prejudicial" as to constitute plain error, see Bowley v. Stotler & Co., 751 F.2d 641, 647 (3d Cir.1985); Batka v. Liberty Mut....