Matherne v. Wilson, No. 87-3161

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation851 F.2d 752
PartiesLeroy J. MATHERNE, Plaintiff-Appellee Cross-Appellant, v. Charles C. WILSON, et al., Defendants-Appellants Cross-Appellees.
Docket NumberNo. 87-3161
Decision Date10 August 1988

Page 752

851 F.2d 752
3 Indiv.Empl.Rts.Cas. 1137
Leroy J. MATHERNE, Plaintiff-Appellee Cross-Appellant,
Charles C. WILSON, et al., Defendants-Appellants Cross-Appellees.
No. 87-3161.
United States Court of Appeals,
Fifth Circuit.
Aug. 10, 1988.

Page 753

Richard M. Michalczyk, Cronvich, Wambsgans & Michalczyk, Metairie, La., for Wilson.

Page 754

Steven F. Griffith, Sr., Ltd., Destrehan, La., for Wilson & Marino.

Peter D. Derbes, Frank A. Silvestri, Silvestri & Massicot, New Orleans, La., for Matherne.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before GARZA, HIGGINBOTHAM, and SMITH, Circuit Judges.


Former Sheriff Charles C. Wilson and his successor, Sheriff Johnny Marino, appeal from a judgment for Leroy J. Matherne, a deputy, on the trial of Matherne's Sec. 1983 claim that Wilson fired him for campaigning for Wilson's political opponent. Persuaded that he is entitled to qualified immunity, we reverse the judgment against Wilson in his individual capacity. We otherwise affirm, persuaded that, measured by current first amendment jurisprudence, the firing contravened the first amendment.


Charles C. Wilson, sheriff of St. Charles Parish, Louisiana, hired plaintiff Leroy J. Matherne to serve as a full-time deputy sheriff. Matherne worked as one of twelve investigators of the Criminal Investigative Division of the sheriff's department. Through a strict chain of command, the sheriff supervised a Chief Deputy who supervised five Deputy Chiefs, each in charge of separate divisions: criminal investigative, patrol, administrative, crime scenes and jail, and civil. The Chief Deputy for the Criminal Investigative Division, Chief Deputy Rooks, supervised three sergeants, who in turn supervised the twelve investigators, one of whom was Matherne. Wilson testified that the other divisions had similar chains of command, though some were less rigid.

Wilson's announced policy was to permit deputy sheriffs "to engage in reasonable political activities on behalf of any candidate of their choice for a political office" but forbidding them from campaigning while on duty and from holding an office in a campaign organization. Wilson later changed this policy to prohibit all sheriff's office personnel from campaigning for a candidate other than Wilson in an upcoming election for St. Charles Parish Sheriff. 1

A month after the change in policy, Matherne served as a cook at a meeting of potential supporters of Buster Puglise, Wilson's opponent in the upcoming election for sheriff. Matherne was off-duty and out of uniform at the time, although there was some evidence that he had parked his sheriff's department car where it was visible to passersby. There was no evidence that Matherne participated in the meeting beyond serving as cook, as he had done before at political and charitable events. A few days later, Matherne, his wife, and their son attended the local Catfish Festival. Matherne again was off-duty and out of uniform, and though he wore no campaign paraphernalia, Matherne's wife and son wore assorted "Puglise for Sheriff" hats, shirts, and buttons.

When Wilson learned of these events, he met privately with Matherne where he reprimanded him for violating the departmental policy. Matherne told Wilson that he would abide by the rule against campaigning for others but planned to vote for Puglise.

A week later Matherne, again while off duty and out of uniform, dropped by Puglise's office at Puglise's request. There

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was no dispute but that Puglise and Matherne had been friends for a long time and that Puglise's office was a popular gathering place for citizens and deputies, even before his campaign for sheriff, in part, perhaps, because he provided free coffee and donuts. It was also undisputed that Wilson himself often stopped by Puglise's office. Matherne recalled that while he was at Puglise's office on this particular occasion, a Puglise campaign worker stopped by to bring some materials to Puglise, that the conversation of the five or six people gathered there turned to Puglise's campaign, but that Matherne himself did not participate in the discussion. Wilson testified that he was told by a supporter of Puglise that this "discussion" was in reality a full-blown meeting of active campaign employees, and he fired Matherne for active participation in the campaign of his opponent. The termination was effective July 25, 1983.

Matherne sued Wilson individually, and Wilson and Johnny Marino, who had replaced Wilson as sheriff, 2 in their official capacities. Matherne alleged that Sheriff Wilson denied Matherne his rights under the first amendment by firing him for supporting the sheriff's opponent.

At trial, the jury found for Matherne and awarded $20,000 as damages, consisting of $6,000 in "nominal" damages, $9,000 for financial loss, and $5,000 for mental anguish. At the same time, the jury found that Wilson had not acted with malice and awarded no punitive damages.

After the jury returned its verdict, the court entered findings of fact and conclusions of law on the issue of whether Wilson was justified in firing Matherne to protect the effectiveness of the sheriff's office, an issue that the court determined to be a question of law. The court concluded:

[Wilson's] political activity policy as applied to [Matherne] bore no relationship to any legitimate interest of [Wilson] as an employer[,] and [Matherne's] activities had no adverse affect [sic] on [Wilson's] interest in the fair and efficient enforcement of the law. Therefore, [Wilson] unconstitutionally discharged [Matherne] from employment in retaliation for [Matherne's] exercise of rights protected by the first and fourteenth amendments....

The district court, however, reduced the total award to $14,100 by reducing the award of nominal damages from $6,000 to $100. The judgment as entered was against Wilson individually as well as against Wilson and Marino in their official capacities.

On appeal, defendants argue that the district court erred: (i) in denying Wilson qualified immunity; (ii) in casting Wilson in his individual capacity rather than solely in his official capacity; (iii) in failing to direct a verdict; (iv) in refusing to give requested jury charges; (v) in shifting the burden of proof to defendants in its verdict form; (vi) in refusing to admit evidence of paid unemployment compensation offered to offset Matherne's claimed lost wages; and (vii) in requiring closing arguments before the charge conference. On cross-appeal, Matherne argues that the court erred in reducing the verdict without giving him the option of partial retrial on the damages issue.


Wilson argues that as a public official, he was entitled to qualified immunity in his individual capacity; that the court erred in rejecting his proferred jury charge and in denying his motions for summary judgment and directed verdict on this ground. Under the Harlow v. Fitzgerald 3 standard of "qualified" immunity, a public official

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cannot be saddled with damages for actions that do not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." 4 Wilson argues that in firing Matherne he violated no "clearly established law" and thus was entitled to Harlow immunity.

First, however, we must address the question of whether Sheriff Wilson has preserved his argument for appeal. Matherne suggests that Wilson has waived his qualified immunity defense because Wilson failed to appeal the denial of his motions. Although Wilson was entitled to take an interlocutory appeal, 5 we are not persuaded that he was obligated to do so.

"Qualified immunity" includes "an entitlement not to stand trial or face the other burdens of litigation." 6 In Mitchell v. Forsyth, the Supreme Court explained that "[t]he [qualified immunity] entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." 7 Yet, and as Matherne's argument perversely ignores, Mitchell also reaffirms that qualified immunity serves to protect public officials from an award of money damages, 8 and this concern remains after a trial.

We are not persuaded that the exception Mitchell carved from the finality of judgment rule was intended to override the general doctrine of appealability. There may be good reasons why a defendant may elect to not appeal before trial, and we see little value in a rule of waiver that would force unwanted appeals, many of which undoubtedly never would have been necessary. In short, the right to appeal before trial belongs to a defendant, protecting him from money damages as well as from the costs of defending a suit. We see no reason to force pretrial appeals. 9


A public official is protected by qualified immunity if a reasonable officer would have believed that his actions met constitutional standards. 10 Significantly, the question is not whether the law was settled, viewed abstractly, but whether, measured by an objective standard, a reasonable officer would know that his action is illegal:

[O]ur cases establish that the right the official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent. 11

The narrower focus dictated by Anderson requires that the law's certainty be measured against an objectively reasonable view of the facts facing an official. Detaching legal principles from the...

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