Pounds v. Griepenstroh, 91-2732

• Decision Date: 06 August 1992
• Docket Number: No. 91-2732,91-2732
• Citation: 970 F.2d 338
• Parties: Larry POUNDS, Plaintiff-Appellee, v. David GRIEPENSTROH, Hugh Barclay, and Louis Lubbehusen, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 338

970 F.2d 338

Larry POUNDS, Plaintiff-Appellee, v. David GRIEPENSTROH, Hugh Barclay, and Louis Lubbehusen,

Defendants-Appellants.

No. 91-2732.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 13, 1992.

Decided Aug. 6, 1992.

Theodore Lockyear, Lockyear & Kornblum, Evansville, Ind., Frank R. Hahn (argued), Newburgh, Ind., for plaintiff-appellee.

James P. Casey, Bowers, Harrison, Kent & Miller, Evansville, Ind., James S. Stephenson, Kenneth Collier-Magar (argued), Stephenson & Kurnik, Indianapolis, Ind., Francis H. Lueken, Ferdinand, Ind., for defendants-appellants.

Before COFFEY and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

COFFEY, Circuit Judge.

Larry Pounds, former Veteran's Service Officer (VSO) of Spencer County, Indiana, sued Spencer County and members of the

                Spencer County Board of Commissioners, alleging that the Board's decision not to reappoint him as VSO in 1989 was politically motivated, and therefore violated his rights under the first and fourteenth amendments.  42 U.S.C. § 1983.   The defendant commissioners moved for summary judgment on the ground of qualified immunity, but the district court denied the motion.   We disagree with the trial court's finding and reverse, holding that the defendant commissioners are entitled to qualified immunity
                

BACKGROUND

Indiana's Department of Veterans' Affairs assists veterans in obtaining "any advantage, benefit or emolument" to which they may be entitled. Ind.Code § 10-5-1-3(a). The Department is headed by the Veteran's Affairs Commission, a four-person group appointed by the governor and containing no more than two members of the same political party, which establishes rules and regulations for the Department and makes general administrative policies. Ind.Code §§ 10-5-1-5(a) and 10-5-1-6. The Director of Veterans' Affairs, also appointed by the governor, oversees the Department's daily operation and ensures that the policies of the governor and the Commission are carried out. Ind.Code §§ 10-5-1-7 and 10-5-1-8. The Director likewise supervises the county and city VSOs, though they are appointed by the local county commissioners or city council. Ind.Code § 10-5-1-11.

In Spencer County the VSO serves a one-year term at the pleasure of the County Board of Commissioners. The plaintiff was appointed VSO in 1981 and again in 1982, but resigned in September of that year. He was appointed again in mid-1983, and reappointed every year until 1989. On January 3 of 1989 the three-member Board, containing two recently-elected commissioners (defendants Lubbehusen and Griepenstroh), chose not to reappoint Pounds, and instead appointed Don Patmore to the position of Spencer County VSO. Pounds filed suit, alleging that the Board refused to reappoint him because he was not a Democrat, and that this deprived him of his right to free speech and association and equal protection.

The district court denied the defendants' summary judgment motion, finding that they were not entitled to qualified immunity because they had not demonstrated that political allegiance was essential in a VSO. As allowed by Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985) the defendants have taken an interlocutory appeal from this ruling. We review this decision de novo. Upton v. Thompson, 930 F.2d 1209, 1211 (7th Cir.1991).

DISCUSSION

In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) the Supreme Court held that

governmental officials performing discretionary functions[ ] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

This protection, known as qualified immunity, serves an important purpose.

Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken with independence and without fear of consequences.

Id. at 819, 102 S.Ct. at 2739 (footnote and internal quotation marks omitted). Qualified immunity shields officials from the burdensome demands often imposed on those who must defend a lengthy lawsuit by requiring the right allegedly violated to have been clearly established at the time of the official's action. Id. at 818, 102 S.Ct. at 2738. Siegert v. Gilley, --- U.S. ----, ---- - ----, 111 S.Ct. 1789, 1793-94, 114 L.Ed.2d 277 (1991). The rationale is that "[i]f the law at the time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he be fairly said to 'know' that the law forbade conduct not previously identified as unlawful." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. A right is "clearly established" for qualified immunity purposes only where "the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates the right," and "in the light of pre-existing law the unlawfulness [of the official's acts was] apparent." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Thus, where the law at the time of the act was not sufficiently developed to put the official on notice that his or her act would violate the plaintiff's statutory or constitutional rights, the official is immune from liability. This standard is high, but it serves the dual purposes of qualified immunity: it allows officials to carry out their duties confidently, without fear of incurring unexpected liability, and it allows courts to dispose of insubstantial claims prior to trial, sparing officials from unnecessary litigation. The standard is objective, based on what a reasonable official would or should have known and thought in the same circumstances, given the state of the law at that time. Id. at 639, 107 S.Ct. at 3038.

In this case Pounds contends that the defendants violated his right to be free from politically motivated employment decisions when they refused to reappoint him as county VSO because he was not a Democrat. ¹ Generally, a public employee cannot be fired or subjected to other adverse employment decisions solely for political reasons. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1294, 63 L.Ed.2d 574 (1980); Rutan v. Republican Party of Illinois, 497 U.S. 62, ---, 110 S.Ct. 2729, 2756, 111 L.Ed.2d 52 (1990). There is an exception to this rule where "the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." ² Branti, 445 U.S. at 518, 100 S.Ct. at 1295. Party affiliation is an appropriate job requirement where "the position held by the individual authorizes, either directly or indirectly, meaningful input into government decisionmaking on issues where there is room for principled disagreement on goals or their implementation." Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir.1981). Given these standards, the question we must answer is: Could the defendants, in light of what they knew about the duties and powers of a county VSO and the law at the time, have reasonably believed that they could refuse to reappoint Pounds solely because of his political affiliation?

Initially, we review the powers and duties of a county VSO, as the functions performed by an official often determine whether he plays a role in setting or implementing policy. Our inquiry is limited to the powers inherent in the office itself; we are not interested in whether or not a particular occupant may have turned the office into a political one. Upton, 930 F.2d at 1214; Hudson v. Burke, 913 F.2d 427, 431 (7th Cir.1990). The Indiana Code reveals that VSOs are appointed by the county commissioners to "render service to the veterans of said county" and are paid from county funds. Ind.Code § 10-5-1-11. Although the statute describing county VSOs does not specifically delineate the meaning of the phrase, "render service to the veterans," the section creating the Department of Veterans' Affairs states that officers of the department, including county VSOs,

shall have full power and authority to do such acts at the request of any veteran of the armed forces, or his or her spouse, surviving spouse or dependents, which shall be necessary or reasonably incident to obtaining or endeavoring to obtain for the [veteran, spouse, or dependent] any advantage, benefit or emolument accruing, due or believed to be accruing or due to such person under any law of the United States, the state of Indiana or any other state ... by reason of the service of such veteran in the armed forces of the United States.

Ind.Code § 10-5-1-3. County VSOs must have the same qualifications and adhere to the same rules and regulations as members of the state Department of Veterans' Affairs. They are supervised by the state Director of Veterans' Affairs. Id. The commissioners' decision of whether to employ a county VSO and how to fund the position is discretionary. Ind.Code § 10-5-1-11. The VSO, in turn, is invested with discretion in the use of the county's funds once appropriated.

Having outlined the powers of a VSO, we turn to the law at the time of the defendants' decision to determine whether it was clearly established that a government employee in Pounds's position could not be fired for political reasons. As Justice Scalia observed in his dissent in Rutan, supra, the law governing patronage dismissals after Branti is almost incurably vague. "What [the Branti standard] means is anybody's guess ... [I]nterpretations of Branti are not only...