829 F.2d 1319 (4th Cir. 1987), 86-1507, McConnell v. Adams

Docket Nº:86-1507, 86-1604 to 86-1611, 86-1619, 86-1620 and 86-3011.
Citation:829 F.2d 1319
Party Name:Doris McCONNELL, Plaintiff-Appellee, and Willie B. Kilgore, Plaintiff, v. Roger ADAMS; Evelyn Bacon, Defendant-Appellant, Scott County, VA., Amicus Curiae, and Susan H. Fitz-Hugh; Katherine Jones McClelland; Faye Owens; Charles Herman Stallard; Glenda Clark Duncan; Judy Carroll; Phillip Lee Cheek; Lee County, Virginia, Defendant. Doris McCONNELL, P
Case Date:October 01, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1319

829 F.2d 1319 (4th Cir. 1987)

Doris McCONNELL, Plaintiff-Appellee,

and

Willie B. Kilgore, Plaintiff,

v.

Roger ADAMS; Evelyn Bacon, Defendant-Appellant,

Scott County, VA., Amicus Curiae,

and

Susan H. Fitz-Hugh; Katherine Jones McClelland; Faye

Owens; Charles Herman Stallard; Glenda Clark

Duncan; Judy Carroll; Phillip Lee

Cheek; Lee County, Virginia,

Defendant.

Doris McCONNELL, Plaintiff-Appellee

and

Willie B. Kilgore, Plaintiff,

v.

Roger ADAMS; Evelyn Bacon, Defendant-Appellant,

Scott County, VA., Amicus Curiae,

and

Susan H. Fitz-Hugh; Katherine Jones McClelland; Faye

Owens; Charles Herman Stallard; Glenda Clark Duncan; Judy

Carroll; Phillip Lee Cheek; Lee County, Virginia;

Commonwealth of Virginia, ex rel. State Board of Elections,

Defendant.

Willie B. KILGORE; Doris McConnell, Plaintiff-Appellee,

v.

Katherine Jones McCLELLAND; Faye Owens, Defendant-Appellant,

Scott County, VA., Amicus Curiae,

and

Roger Adams; Evelyn Bacon; Susan H. Fitz-Hugh; Charles

Herman Stallard; Glenda Clark Duncan; Judy Carroll;

Phillip Lee Cheek; Lee County, Virginia; Commonwealth of

Virginia, ex rel. State Board of Elections, Defendant.

Katherine Jones McCLELLAND; Faye Owens, Plaintiff-Appellee,

v.

COMPASS INSURANCE COMPANY, Defendant-Appellant

and

Republic Insurance Company; Commonwealth of Virginia, ex

rel. State Board of Elections, Defendant.

Willie B. KILGORE; Doris McConnell; Patsy Burchett;

Katherine Jones McClelland; Faye Owens, Plaintiff-Appellee,

v.

COMMONWEALTH OF VIRGINIA, ex rel. STATE BOARD OF ELECTIONS,

Defendant- Appellant.

Katherine Jones McCLELLAND; Faye Owens, Plaintiff-Appellant,

v.

REPUBLIC INSURANCE COMPANY; Compass Insurance Company

Commonwealth of Virginia, State Board of

Elections, Defendant-Appellee.

Doris McCONNELL, Plaintiff-Appellee,

and

Willie B. Kilgore, Plaintiff,

v.

COMPASS INSURANCE COMPANY, Party in Interest-Appellant,

Scott County, VA., Amicus Curiae,

and

Roger Adams; Evelyn Bacon; Susan H. Fitz-Hugh; Katherine

Jones McClelland; Faye Owens; Charles Herman Stallard;

Glenda Clark Duncan; Judy Carroll; Phillip Lee Cheek; Lee

County, Virginia; Commonwealth of Virginia, ex rel. State

Board of Elections, Defendant.

Willie B. KILGORE, Plaintiff-Appellee,

and

Doris McConnell, Plaintiff,

v.

COMPASS INSURANCE COMPANY, Party in Interest-Appellant,

Scott County, VA., Amicus Curiae,

and

Roger Adams; Evelyn Bacon; Susan H. Fitz-Hugh; Katherine

Jones McClelland; Faye Owens; Charles Herman Stallard;

Glenda Clark Duncan; Judy Carroll; Phillip Lee Cheek; Lee

County, Virginia; Commonwealth of Virginia, ex rel. State

Board of Elections, Defendant.

Willie B. KILGORE; Doris McConnell; Patsy Burchett,

Plaintiff-Appellant,

v.

Roger ADAMS; Evelyn Bacon; Katherine Jones McClelland;

Faye Owens; Charles Herman Stallard; Phillip Lee Cheek;

Lee County, Virginia; Commonwealth of Virginia, ex rel.

State Board of Elections; Republic Insurance Company;

Compass Insurance Company, Defendant-Appellee,

Scott County, VA., Amicus Curiae,

and

Susan H. Fitz-Hugh; Glenda Clark Duncan; Judy Carroll, Defendant.

Patsy BURCHETT, Plaintiff-Appellee,

v.

Phillip Lee CHEEK, Defendant-Appellant,

and

Susan H. Fitz-Hugh; Lee County, Virginia, Defendant (Two Cases).

Patsy BURCHETT, Plaintiff-Appellee,

v.

COMPASS INSURANCE COMPANY, Party in Interest-Appellant,

and

Susan H. Fitz-Hugh; Phillip Lee Cheek; Lee County,

Virginia, Defendant.

Nos. 86-1507, 86-1604 to 86-1611, 86-1619, 86-1620 and 86-3011.

United States Court of Appeals, Fourth Circuit

October 1, 1987

Argued Feb. 2, 1987.

Rehearing and Rehearing In Banc Denied Nov. 19, 1987.

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Gregory E. Lucyk, Asst. Atty. Gen., Deborah Wood Brattain (Gary C. Hancock, Thomas J. McCarthy, Gilmer, Sadler, Ingram, Sutherland and Hutton on brief), Larry B. Kirksey (Woodward, Miles & Flanagan, P.C. on brief), James Jones (Penn, Stuart, Eskridge & Jones, Mary Sue Terry, Atty. Gen. of Va., Gail Starling Marshall, Deputy Atty. Gen., Henry Keuling-Stout, Florence Powell, Mullins, Keuling-Stout, Thomason & Harris, C. Dean Foster, Jr., Co. Atty., on brief), for defendants-appellants; William Henry Hurd (Bryant, Hurd & Porter, on brief).

Cynthia D. Kinser (Joseph E. Wolfe, Jerry W. Kilgore, Terry G. Kilgore, Wolfe & Farmer, on brief), for plaintiffs-appellees.

Before RUSSELL and SPROUSE, Circuit Judges, and BUTZNER, Senior Circuit Judge.

BUTZNER, Senior Circuit Judge:

This consolidated appeal concerns judgments for damages and injunctive relief entered against county electoral board members and a general county registrar. These appellants failed to reappoint two registrars and an assistant registrar, appellees, due to their political affiliations. This appeal also concerns the district court's order that the Commonwealth of Virginia's insurance carrier pay the judgments. We affirm the district court's judgment that the failure to reappoint the appellees violated their constitutional rights and its order requiring the appellants to reappoint the appellees to their respective positions. Because the appellants are not subject to damages in either their individual or official capacities, we reverse the judgments for damages. 1

I

Until April 1, 1983, Willie Kilgore and Doris McConnell served as general registrars for Scott and Lee Counties in Virginia, respectively. Both were Republicans. In the 1982 general elections, Virginia voters replaced the incumbent Republican governor with a Democrat. Because of this change, Va. Code Ann. Sec. 24.1-29 (1985) required a Democratic majority on the three-member electoral board in each city and county. The terms of the Democratic-controlled boards commenced on March 1, 1983.

When the terms of Kilgore and McConnell expired on March 31, 1983, their respective electoral boards did not reappoint them as general registrars. Instead, the Scott County board appointed Glenda Duncan, and the Lee County board appointed Phillip Cheek. Both were Democrats. Kilgore and McConnell then filed suit under 42 U.S.C. Sec. 1983 against the Democratic members of their respective electoral boards, alleging that they were not reappointed solely because they were Republicans. They sought reappointment and damages against the board members in both their individual and official capacities. Their claims were severed and tried to different juries, which returned verdicts against the board members in excess of $75,000 in each case. The district court sustained the verdicts and ordered the board members to reinstate Kilgore and McConnell. Finding that the board members were state employees, the district court ordered the state's insurance carrier to pay the judgments.

Patsy Burchett served as assistant general registrar to Doris McConnell in Lee County prior to April 1, 1983. When Cheek became general registrar in March 1983, he declined to reappoint Burchett as his assistant. Burchett filed a Sec. 1983 action against Cheek, alleging that she was not reappointed solely because she was a Republican. She sought reappointment and damages against Cheek in both his individual and official capacities. The jury returned a verdict in favor of Burchett and awarded

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her $40,000 in damages. The district court sustained the verdict and ordered reinstatement of Burchett. Finding that Cheek was a state employee, the district court ordered the state's insurance carrier to pay the judgment. 2

II

In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court forbade the discharge or threatened discharge of a "nonpolicymaking, nonconfidential government employee" upon the sole ground of the employee's political affiliation. In Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574 (1980), the Court refined the standard applicable to politically motivated discharges:

It is equally clear that party affiliation is not necessarily relevant to every policymaking or confidential position.... In sum, the ultimate inquiry is not whether the label "policymaker" or "confidential" fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.

Branti establishes that a public official may not be discharged solely for reasons of patronage unless the employer can demonstrate that party affiliation is necessary for effective job performance.

The verdicts finding that the registrars were not rehired for reasons of patronage are amply supported by the record. Nevertheless, the appellants contend that Branti does not protect a public employee who is not reappointed at the expiration of an employment term. 3 They note that no decision in this circuit has applied Branti to a failure to rehire. The appellants alternatively contend that the Virginia statutory scheme governing election officials provides a justification for their actions that satisfies the Branti standard.

We thus face two questions: first, does the Branti prohibition on patronage dismissals govern a failure to reappoint? And second, if so, have the appellants demonstrated sufficient justification for their decisions not to reappoint the registrars?

We rely on the language of Branti and the weight of post-Branti authority in deciding that Branti indeed...

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