Diryzza v. County of Tehama

• Decision Date: 21 March 2000
• Docket Number: No. 98-15997,98-15997
• Citation: 206 F.3d 1304
• Parties: (9th Cir. 2000) SHEROL DIRUZZA, aka Sherol Janc, Plaintiff-Appellant, v. COUNTY OF TEHAMA, a public entity; ROBERT HEARD, as an individual and as Sheriff for the County of Tehama; JERRY FLOYD, as an individual and as Undersheriff of the County of Tehama, Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1304

206 F.3d 1304 (9th Cir. 2000)

SHEROL DIRUZZA, aka Sherol Janc, Plaintiff-Appellant, v. COUNTY OF TEHAMA, a public entity; ROBERT HEARD, as an individual and as Sheriff for the County of Tehama; JERRY FLOYD, as an individual and as Undersheriff of the County of Tehama, Defendants-Appellees.

No. 98-15997

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted July 12, 1999

Filed March 21, 2000

[Copyrighted Material Omitted] COUNSEL: Mike McGuire and David A. Prentice, McGuire & Prentice, Sacramento, California, for the plaintiff-appellant.

J. Scott Smith, Angelo, Kilday & Kilduff, Sacramento, California, for defendant-appellee County of Tehema.

Stephen E. Horan, Porter, Scott, Weiberg & Delehant, Sacramento, California, for defendants-appellees Robert Heard and Jerry Floyd.

Michael Rains, Carroll, Burdick & McDonough, San Francisco, California, for amicus curiae the Peace Officers Research Association of California, Peace Officers Research Association of California Legal Defense Fund, Kern Law Enforcement Association, and Elko County Sheriffs' Employees Association.

Appeal from the United States District Court for the Eastern District of California; William B. Shubb, District Judge, Presiding. D.C. No. CV-96-00596-WBS

Before: Stephen Reinhardt, Diarmuid F. O'Scannlain, and William A. Fletcher, Circuit Judges.

Opinion by Judge William A. Fletcher; Dissent by Judge O'Scannlain

W. FLETCHER, Circuit Judge:

Plaintiff Sherol DiRuzza was a deputy sheriff in Tehama County from 1992 to 1995. During the election season in 1994, she supported incumbent Sheriff Mike Blanusa in his bid for reelection. Blanusa lost to Sheriff Robert Heard, one of the defendants in this case. DiRuzza asserts that defendants Heard and Undersheriff Jerry Floyd caused her to lose her job as a result of her political activity in support of Blanusa.

The district court concluded that DiRuzza's political activities were not protected under the First Amendment because deputy sheriffs are policymakers, and that political loyalty is an appropriate requirement for her job. The district court accordingly held that defendants were allowed to retaliate against DiRuzza for her political speech. The district court granted summary judgment to defendants Heard, Floyd and Tehama County, and DiRuzza has timely appealed.

We reverse the district court's grant of summary judgment. We hold that defendants have failed to show as a matter of law that DiRuzza was a policymaker and that political loyalty was therefore an appropriate requirement for her job. We remand for a determination of whether her actual duties were those of a policymaker. We further hold that the law protecting non-policymaking public employees from retaliation for the exercise of their First Amendment rights was clearly established in 1995, and we remand for a determination of the reasonableness of the actions of defendants Heard and Floyd in light of the then-clearly established law. Finally, we remand for further proceedings to determine, whether defendants Heard and Floyd engaged in political retaliation.

I

In November 1994, incumbent Tehama County Sheriff Mike Blanusa was defeated by defendant Sheriff Robert Heard. Heard assumed office as the new sheriff on January 3, 1995. DiRuzza had publicly supported Blanusa in the election, even appearing in a televised political advertisement on his behalf. Prior to Heard's assuming office, DiRuzza discharged her service revolver out of her bedroom window during a domestic dispute in which her fiance allegedly damaged her car, tore her phone off the wall, and threatened her with physical violence. As a result of this incident, Blanusa suspended DiRuzza for 30 days. On December 15, 1994, the district attorney charged DiRuzza with the felony of "gross negligent discharge of a firearm" and the misdemeanor of "exhibiting a firearm in a rude and threatening manner." Cal. Penal Code SS 246.3 and 417(a)(2). After Heard took office in January, DiRuzza was allowed to plead guilty to the lesser infraction of disturbing the peace, but only on condition that she resign her position as deputy sheriff.

On March 26, 1996, DiRuzza filed suit in federal district court, alleging twelve federal and state causes of action against Sheriff Heard, Undersheriff Floyd, and Tehama County. The gravamen of her complaint was that Heard and Floyd retaliated against her because she had supported Blanusa in the election. She alleged that, due to her political support of Blanusa and opposition to Heard, she was not resworn as a deputy after the election, was given undesirable shifts, and was forced to accept resignation under threat of a felony charge. By the time the district court ruled on defendants' motion for summary judgment, DiRuzza had narrowed her suit under federal law to claims under 42 U.S.C.SS 1983 and 1985, and sought only damages as a remedy.

Defendants at first denied that there was any political retaliation against DiRuzza, contending, in the words of the district court, "that all the alleged adverse employment actions were due to the pending felony charge of negligent discharge of her service weapon." At summary judgment, defendants proposed as an undisputed material fact that neither Heard nor Floyd "knew of plaintiff's support for the former Sheriff Blanusa." DiRuzza disputed this assertion and defendants subsequently filed a supplemental brief arguing that irrespective of what knowledge they had, there is no constitutional prohibition against an elected sheriff's termination of a deputy for partisan reasons.

In granting summary judgment for all defendants on DiRuzza's claims under SS 1983 and 1985, the district court held, in essence, that deputy sheriffs in California are policymakers and may be fired for political reasons. In so holding, the district court relied upon three cases from other circuits holding that deputy sheriffs are policymakers. See Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1997) (en banc), cert. denied, 522 U.S. 1090 (1998); Upton v. Thompson, 930 F.2d 1209 (7th Cir. 1991); Terry v. Cook, 866 F.2d 373 (11th Cir. 1989). The district court supported its holding that DiRuzza was a policymaker and therefore subject to partisan dismissal by noting that under Cal. Gov't Code S 24100 a deputy sheriff exercises the same general authority as the sheriff. The district court further held, in the alternative, that individual defendants Heard and Floyd were entitled to qualified immunity because they had not violated a clearly established right. The district court then declined to exercise supplemental jurisdiction over the remaining state law claims.

We review de novo a grant of summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998). Viewing the evidence in the light most favorable to the non-moving party, we must determine whether the district court correctly applied the law and whether there are any genuine issues of material fact. Id.

II

A. Was Deputy Sheriff DiRuzza a Policymaker?

We must first decide whether DiRuzza could be fired because of her political activity. "Government officials may not discharge public employees for refusing to support a political party or its candidates, unless political affiliation is a reasonably appropriate requirement for the job in question." O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 714 (1996) (citing Elrod v. Burns, 427 U.S. 347 (1976)); Branti v. Finkel, 445 U.S. 507 (1980). The key inquiry is whether DiRuzza held a policymaking position where political affiliation was a "reasonably appropriate requirement" for the job. See O'Hare, 518 U.S. at 719.

The Supreme Court has held repeatedly that public employees are protected from retaliation for the exercise of their First Amendment rights. "A state may not condition public employment on an employee's exercise of his or her First Amendment rights." O'Hare, 518 U.S. at 717. "The First Amendment prevents the government, except in the most compelling circumstances, from wielding its power to interfere with its employees' freedom to believe and associate." Rutan v. Republican Party of Ill., 497 U.S. 62, 76 (1990) (emphasis added). However, an employee's rights are not absolute and must be balanced against the role of government as an employer. See Pickering v. Board of Educ., 391 U.S. 563, 568 (1968) (finding that the court must "balance . . . the interests of the [employee], as a citizen, in commenting on matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees").

Recognizing that there are some circumstances in which an employee's First Amendment rights are not absolute, the Supreme Court has carved out a narrow exception to the First Amendment's protection in cases where the public employee is a policymaker or confidential employee. This exception was first enunciated in 1976 in Elrod v. Burns, where four non-civil service employees of a sheriff's department were fired by the new sheriff because they failed to affiliate themselves with the party of newly elected Sheriff Elrod. One employee was the Chief Deputy of the Process Division, another a bailiff, and the third a process server; the position of the fourth employee was not described. Elrod, 427 U.S. at 350-51. The Supreme Court held that these patronage dismissals were unconstitutional. Justice Brennan's plurality opinion broadly condemned the constitutional evils of the patronage system, but recognized an exception for "policymaking positions" where "the employee acts as an adviser or formulates plans for the implementation of broad goals." Elrod, 427 U.S. at 367-68. Justice Stewart concurred separately, joined by Justice Blackmun, stating,"The single substantive question involved in this case is whether a nonpolicymaking, non-confidential government employee can be discharged or threatened with discharge from a job that he is...