Abbott v. Thetford

• Decision Date: 02 April 1976
• Docket Number: No. 73--1894,73--1894
• Citation: 529 F.2d 695
• Parties: C. D. (Denny) ABBOTT, Plaintiff-Appellant, v. William F. THETFORD, Individually and in his official capacity as Judge of the Family Court of Montgomery County, Alabama, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 695

529 F.2d 695

C. D. (Denny) ABBOTT, Plaintiff-Appellant, v. William F. THETFORD, Individually and in his official

capacity as Judge of the Family Court of

Montgomery County, Alabama, Defendant-Appellee.

No. 73--1894.

United States Court of Appeals, Fifth Circuit.

April 2, 1976.

Rehearing En Banc Granted

April 21, 1976.

Howard A. Mandell, Montgomery, Ala., for plaintiff-appellant.

Neil Bradley, Laughlin McDonald, Morris Brown, Emily Carssow, Atlanta, Ga., for Tenn. Valley Unit of Ala. Chapter of Nat'l. Assoc. of Soc. Workers, amicus curiae.

Jack Greenberg, James M. Nabrit, III, Ann Wagner, New York City, for NAACP, amicus curiae.

Richard H. Dorrough, Robert B. Stewart, Montgomery, Ala., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before BROWN, Chief Judge, GEWIN and GOLDBERG, Circuit Judges. ^*

JOHN R. BROWN, Chief Judge:

On November 17, 1972, C. D. (Denny) Abbott, then Chief Probation Officer of the Circuit Court of Montgomery County, Alabama, Domestic Relations Division, filed a civil action in Federal District Court on behalf of three minor black children charging that racially discriminatory admission policies were maintained by the Alabama Department of Pensions and Security and six homes for dependent and neglected children. In response to this suit, William F. Thetford, Judge of the Juvenile Court for which Abbott was Chief Probation Officer, discharged Abbott on grounds that his action in filing the suit violated an express order of the Judge prohibiting the filing of lawsuits by staff employees. Furthermore, the Judge felt that Abbott's continued employment as Chief Probation Officer would disrupt the efficient operations of his Court. Abbott challenged his discharge in Federal Court bringing a complaint pursuant to 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 1343(3). The District Court held a lengthy hearing, and on February 20, 1973, rendered an opinion dismissing Abbott's complaint. We conclude that the District Court improperly dismissed Abbott's complaint and reverse and remand.

Montgomery County's Juvenile Court is incorporated within the Domestic Relations Division of the Montgomery Circuit Court. Judge Thetford presided over the Juvenile Court and for nine years prior to his discharge, Denny Abbott had served as Chief Probation Officer. Most of the Juvenile Court's caseload is received from the Youth Aid Division of the Police Department. The Juvenile Court attempts to place dependent and neglected children in children's homes throughout the state, but the Court must depend heavily on the Alabama Department of Pensions and Security, or Welfare Office, which has primary responsibility for such placement. Private homes, mostly church operated and dependent on voluntary contributions for financial support, are the major resource for the placement of the children.

In 1972 most of these children's homes throughout Alabama remained segregated by race. There were two children's homes in Montgomery County, Brantwood, an all-white institution, and Our Lady of Fatima, an all-black home operated by a Catholic priest. ¹

As Chief Probation Officer, Abbott worked closely with the other members of the probation staff. ² Abbott also served as the link between Judge Thetford and the probation staff, thereby necessitating a direct working relationship with Judge Thetford. While Abbott was employed on the merit system, and not at the discretion of Judge Thetford, he worked for the Judge and a degree of cooperation was necessary for efficient court operation.

The 1969 Lawsuit

The first serious trouble between Judge Thetford and Abbott occurred in 1969. In January of that year, Abbott as next friend filed a class action suit ³ in Federal Court on behalf of five black children then being held in the detention facilities of Montgomery County. The suit sought to improve conditions at the detention facility and correct the mistreatment of black children at the Mt. Meigs Industrial School for Delinquent Negro Boys. ⁴

Judge Thetford responded unfavorably to the lawsuit and suspended Abbott for 15 days for his 'deliberate and willful disobedience of instructions.' Abbott explained his actions in a letter to Judge Thetford prior to his suspension 'I would like to assure you that my action in Federal Court was, in no way, intended to reflect upon you or the court. I am, indeed, sorry if you feel that such action was a betrayal of your trust in me. I feel that I have not betrayed my conscience or the young people of Montgomery County.'

Abbott returned to his position as Chief Probation Officer at the termination of his suspension and no further conflicts occurred over the 1969 lawsuit.

Judge Thetford's 1972 Order

On September 29, 1972, Judge Thetford called a meeting in his office with the supervisory probation personnel including Abbott, Mr. Franklin and Ms. Goodwyn. Judge Thetford testified at the District Court hearing that he called the staff meeting since his suspicions of possible litigation were aroused when he was informed that Abbott had been seen frequently visiting the office of a wellknown civil rights lawyer in Montgomery. An oral directive was given by the Judge concerning the filing of lawsuits by the supervisory personnel or other staff members. Abbott relayed this directive on to the other staff members. Since there was no written directive issued, varying versions of the Judge's instructions were recalled at the District Court hearing. ⁵

Abbott testified that to the best of his recollection Judge Thetford had instructed the three staff members that 'no personnel at the Montgomery County Youth Facility would aid, assist in the filing, or file any lawsuit in any court regarding any matter.' In his complaint, however, Abbott recounted that Judge Thetford's oral directive only admonished that 'no suits (are to be) filed by any personnel of the Montgomery County Youth Facilities without my prior knowledge and approval.'

1972 Lawsuit

On November 17, 1972, Abbott filed a class action, ⁶ in Federal District Court, on behalf of three dependent and neglected black children seeking to integrate six all-white child-care institutions and seeking to require the Alabama Department of Pensions and Security to create more resources for black children. In no way did the suit challenge Judge Thetford's policies or official actions as judge of the Juvenile Court. Prior to filing the suit, however, Abbott did not consult Judge Thetford concerning the substance of the suit. On November 22, 1972, Judge Thetford notified Abbott by letter that he was discharged, effective immediately, for his action in filing the lawsuit. ⁷ Abbott brought this present action as a 'motion for supplemental relief' on the class action which he had filed on November 17, 1972. The District Court treated the motion as a new and separate claim.

Constitutionality Of The Judge's Order

We must first determine whether Judge Thetford's oral directive could constitutionally prohibit the probation personnel from filing lawsuits. The right to file a law suit is a form of communication embraced by the First Amendment which 'protects vigorous advocacy, certainly of lawful ends, against governmental intrusion.' N.A.A.C.P. v. Button, 1963, 371 U.S. 415, 429, 83 S.Ct. 328, 336, 9 L.Ed.2d 405, 416.

In Button the State of Virginia imposed criminal penalties for (1) advising persons of when their legal rights were infringed, (2) referring these persons to attorneys for legal assistance, and (3) the rendering of such legal assistance. The Supreme Court held that the State's interest in regulating barratry did not justify an unconstitutional intrusion on the NAACP's freedom of expression and association. Freedom of access to the Courts is necessary since 'under the conditions of modern government, litigation may well be the sole practicable avenue open to a minority to petition for redress of grievances.' 371 U.S. at 430, 83 S.Ct. at 336, 9 L.Ed.2d at 416.

Clearly Abbott and all the other probation personnel possess the right of free access to the courts for purposes of prosecuting a lawsuit. But the exercise of this acknowledged right to litigate has its boundaries as does the exercise of other First Amendment freedoms by state employees. The state has a legitimate interest in promoting the efficient operation of government and 'it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.' Pickering v. Board of Education, 1968, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811, 817.

In regulation of First Amendment freedoms of state employees, a balance must be reached between the interest of the state and the interest of the employee as a person. Pickering v. Board of Education, supra, 391 U.S. at 568, 88 S.Ct. at 1734, 20 L.Ed.2d at 817; Battle v. Mulholland, 5 Cir., 1971, 439 F.2d 321, 324. It is important to remember in striking this balance that the theory espousing the right of the state to impose any conditions, regardless of how unreasonable, on the freedoms of state employees has been rejected. Keyishian v. Board of Regents, 1967, 385 U.S. 589, 605--606, 87 S.Ct. 675, 684--685, 17 L.Ed.2d 629, 642. Furthermore, the Court has ensured the right of state employees to exercise their First Amendment rights in matters of public concern even though they may be directed at their supervisors who do not wish to contend with the employees' expressions of opinion. Pickering v. Board of Education, supra, 391 U.S. at 574, 88 S.Ct. at 1737, 20 L.Ed.2d at 820; Tinker v. Des Moines Independent Community School District, 1969, 393 U.S. 503, 511-- 513, 89 S.Ct. 733, 739--740, 21 L.Ed.2d 731, 740--741; Burnside v. Byars, 5 Cir., 1966, 363 F.2d 744, 749. See United States Civil Service Commission v. National Association...