Harter v. Vernon

• Decision Date: 22 March 1996
• Docket Number: Civil No. 3:95CV75.
• Citation: 953 F.Supp. 685
• Parties: Wayne HARTER and Robert Payne, Plaintiffs, v. C.D. VERNON, individually and in his official capacity as Sheriff of Rockingham County; and Rockingham County, Defendants.
• Court: U.S. District Court — Middle District of North Carolina

953 F.Supp. 685

Wayne HARTER and Robert Payne, Plaintiffs, v. C.D. VERNON, individually and in his official capacity as Sheriff of Rockingham County; and Rockingham County, Defendants.

Civil No. 3:95CV75.

United States District Court, M.D. North Carolina, Rockingham Division.

March 22, 1996.

COPYRIGHT MATERIAL OMITTED

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Martha A. Geer, Patterson, Harkavy & Lawrence, Raleigh, NC, for plaintiffs.

James Redfern Morgan, Jr., Womble, Carlyle, Sandridge & Rice, Winston-Salem, NC, for defendants.

James Edwin Pons, Office of Guilford County Attorney, Greensboro, NC, for movant.

MEMORANDUM OPINION

BULLOCK, Chief Judge.

Two former employees of the Rockingham County Sheriff's Department ("Department") brought this suit alleging that they were discharged in violation of the First, Fifth and Fourteenth Amendments to the United States Constitution, the North Carolina Constitution, and the public policy of the state of North Carolina. Defendants have moved for summary judgment on all counts, and the court will partially grant that motion.

BACKGROUND

The court takes the evidence in the light most favorable to Plaintiffs, as it must at this stage. Defendant Sheriff C.D. Vernon hired plaintiff Robert Payne as a deputy in December 1989 and plaintiff Wayne Harter as a dispatcher in January 1991. In 1994, Vernon stood for re-election against three candidates in the Democratic primary. By Vernon's admission, this was his toughest campaign yet.

According to Plaintiffs, Vernon put the resources of his office to work to get re-elected. Vernon ran the campaign out of his sheriff's office. There is some evidence that employees worked on the campaign while on duty and with Department property. Plaintiffs relate a few occasions when, while on the job, they and other Department employees were asked to support Vernon. The Department's second-in-command told officers at shift meetings how to donate money and where to obtain posters. According to Payne, officers were told "Remember who you're working for. The man gave you a job." Other officers also testify that Vernon's high-level assistants made campaign announcements during working hours.

Vernon did not personally confront Plaintiffs; however, coworkers Kathy and Bobby Knight report that Vernon told them that they had to throw themselves completely into the campaign by putting up posters and attending his campaign functions. Vernon also made statements that Bobby Knight interpreted as threats that the Knights would be fired seven weeks after the primary for failing to support him.

Plaintiffs gave Vernon's campaign meager support. Payne donated ten dollars to Vernon's campaign, but he did not vote for any candidate. Harter told Vernon that he supported him but preferred not to campaign for him. Neither participated further in the election, either for or against Vernon.

Around the time of the primary, Vernon began to investigate alleged wrongdoing by certain deputies. Members of the shift on which Payne worked were taking their breaks in the Sanitary Cafe restaurant without checking out by radio. Vernon's investigation revealed that five deputies had engaged in such behavior. Vernon talked with three of those deputies about these activities. He did not talk to two—Payne and Richard Lintecum—who did not actively support him. Those were the only two he fired.

Vernon says this investigation also revealed that Harter had engaged in unprofessional conduct over the telephone. Harter had joked with callers whom he knew and had derided day-shift workers. Vernon did not confront Harter about this conduct.

On July 15, 1994, Vernon fired seven of his employees, including Plaintiffs. There is evidence that each of the seven either supported Vernon's major opponent, was rumored to have done so, or had not actively supported Vernon.

DISCUSSION

A party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material if it could affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

I. Eleventh Amendment Immunity

Vernon requests that the court accord him immunity from suit in his official capacity under the Eleventh Amendment to the United States Constitution. The Eleventh Amendment provides a state with immunity from suits brought in federal court by her own citizens as well as by citizens of another state. Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974). Also, state officers acting in their official capacity are entitled to Eleventh Amendment protection. Gray v Laws, 51 F.3d 426, 430 (4th Cir.1995). The Eleventh Amendment does not shield local government entities and officers from suit. Id. at 431.

Eleventh Amendment protection thus turns on whether Vernon, as sheriff of Rockingham County, was a state or local actor. Until recently, the Fourth Circuit employed a four-part test for Eleventh Amendment protection. Gray, 51 F.3d at 431 n. 2. Courts had to examine: (1) whether the state treasury was responsible for paying any judgment that might be awarded; (2) whether the official exercised a significant degree of autonomy from the state; (3) whether the official was involved with local versus state-wide concerns; and (4) how the official was treated as a matter of state law. Id. See Ram Ditta v. Maryland Nat'l Capital Park & Planning Comm'n, 822 F.2d 456, 457-58 (4th Cir.1987). Although courts were to balance all four factors, see id. at 460, the first factor carried great weight, see id. at 457. If the damages would be paid out of the state treasury, the official was always immune. Bockes v. Fields, 999 F.2d 788, 791 (4th Cir.1993), cert. denied, 510 U.S. 1092, 114 S.Ct. 922, 127 L.Ed.2d 216 (1994). The other three factors were relevant only when the state treasury would be unharmed by any judgment. Id. at 790-91.

The test became unsettled after Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994). In Hess, the Supreme Court stressed that the Eleventh Amendment exists to maintain the state's solvency and dignity. Id. at 51, 115 S.Ct. at 406. The Court thus emphasized that these two interests, rather than any other indicators, are the "prime guide" to the Eleventh Amendment inquiry. See id. at 47, 115 S.Ct. at 404.¹ In particular, the Court focused on the source of funds that would satisfy a judgment: "If the expenditures of the enterprise exceed receipts, is the State in fact obligated to bear and pay the resulting indebtedness of the enterprise? When the answer is "No"—both legally and practically—then the Eleventh Amendment's core concern is not implicated." Id. at 51, 115 S.Ct. at 406.

While Hess established that some factors are more important than others, it did not mandate specifically how lower courts were to weigh those factors. It did not indicate whether the "solvency and dignity" questions are dispositive, or, if not, how that inquiry interacts with the lesser factors. See Gray, 51 F.3d at 433 (discussing questions left after Hess). Therefore, in Gray v. Laws, the Fourth Circuit had to consider whether its prior approach had to be changed after Hess. The court read Hess to leave mostly intact the circuit's traditional Eleventh Amendment analysis: "In the end, we do not believe that Hess, as it applies to single state entities, materially altered [our prior] Eleventh Amendment analysis...." Gray, 51 F.3d at 434. While the circuit noted that Hess might require it to tinker with its balance of factors, id., it did not direct how to adjust them. See also Ristow v. South Carolina Ports Auth., 58 F.3d 1051, 1053 n. 4 (4th Cir.) (not "attempt[ing] to interpret the Court's language concerning state sovereignty and dignity"), cert. denied, ___ U.S. ___, 116 S.Ct. 514, 133 L.Ed.2d 423 (1995). This court will not compose a new test. Instead, the established four-part test will be applied, keeping in mind the two concerns that underlie the inquiry according to Hess.²

A. State Treasury Concerns

As discussed above, the most important consideration is the source of funds to pay any judgment. This circuit has said that "it appears that a determination that the state treasury will be liable for a particular judgment is largely, if not wholly, dispositive of entitlement to Eleventh Amendment immunity." Gray, 51 F.3d at 433.

Vernon does not argue that the state will have to satisfy any judgment in this case. Indeed, Vernon's briefs refer the court to Braswell v. Ellis, 950 F.Supp. 145 (E.D.N.C. 1995) (order den. mot. for recons.), which holds that the state treasury does not have to satisfy judgments against sheriffs. 950 F.Supp. at 147-48. State statutes indicate several possible sources of payment, none of which is the state treasury.³ In the face of this authority, Vernon has not shown that a penny of any judgment could possibly come from the state treasury. The court will consider the other factors in the Eleventh Amendment inquiry, recognizing, however, that this state treasury factor is largely, if not wholly, dispositive.

B. Degree of Autonomy from the State

Vernon also cites Braswell for its holding that the state controls the sheriff so much that he is a state actor. The Eastern District concluded in Braswell that the sheriff is an arm of the state because the state constitution creates his office, N.C. Const. art. VII, § 2, and North Carolina statutes are full of provisions that govern sheriffs: the term of office, N.C.Gen.Stat. § 162-1 (1994); the qualifications of office, N.C.Gen. Stat. § 162-2 (1994); the duty to handle...