McBee v. Jim Hogg County, Tex.

• Decision Date: 30 April 1984
• Docket Number: No. 81-2465,81-2465
• Citation: 730 F.2d 1009
• Parties: Jimmie McBEE, et al., Plaintiffs-Appellees, v. JIM HOGG COUNTY, TEXAS and Gilbert Ybanez, Defendants-Appellants. Javier Alfonso HINOJOSA, et al., Plaintiffs, v. JIM HOGG COUNTY, TEXAS, et al., Defendants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1009

730 F.2d 1009

1 Indiv.Empl.Rts.Cas. 375

Jimmie McBEE, et al., Plaintiffs-Appellees, v. JIM HOGG COUNTY, TEXAS and Gilbert Ybanez, Defendants-Appellants.

Javier Alfonso HINOJOSA, et al., Plaintiffs, v. JIM HOGG COUNTY, TEXAS, et al., Defendants.

No. 81-2465.

United States Court of Appeals, Fifth Circuit.

April 30, 1984.

Richard R. Gonzales, Hebbronville, Tex., Donato D. Ramos, Laredo, Tex., for defendants-appellants.

Pope, Pope, Guerrero, Guerrero & Reed, Roger Reed, Rio Grande City, Tex., for plaintiffs-appellees; Rick Fancher, Corpus Christi, Tex., of counsel.

Christopher J. Roy, Alexandria, La., Paul R. Baier, Baton Rouge, La., for amici curiae certain former deputy sheriffs of Natchitoches.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, BROWN, GEE, RUBIN, GARZA, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM and DAVIS, Circuit Judges.

GEE, Circuit Judge:

Today we consider what constitutional restraints burden the freedom of a local elected official to reappoint subordinates of his defeated opponent--or to decline to do so.

Facts and State Law

We reiterate only such facts, set out at length in the panel opinion, ¹ as are necessary to an understanding of our resolution of the issue.

In Jim Hogg County, lying in rural South Texas and boasting a population of less than 6,000, nomination in the Democratic primary is tantamount to election to local office. Just over three years ago, Gilbert Ybanez embarked on his statutory four-year term as duly elected sheriff there. Although he offered to reappoint some of his predecessor's employees to positions in his administration, he made no such offer to the five plaintiff-appellant deputy sheriffs. ² Instead, he followed the established custom in the county of making place for his own political supporters at the expense of Deputies Contreras, Hinojosa, Serna and Spencer, the first three of whom actively supported his predecessor's primary campaign against Ybanez. He withdrew an unaccepted offer to retain Deputy McBee in a lesser position than that she had held under his predecessor after she complained to county authorities about the "unfairness" of Ybanez's actions toward her former colleagues. This civil rights action followed.

Procedural History

The trial court, concluding that the Supreme Court decisions in Elrod ³ and Branti ⁴ applied as fully to public employment decisions based on personal support of an individual Democrat as to those based on party affiliation, determined that Ybanez's attempted justifications for failing to reappoint Contreras, Hinojosa and Serna were pretextual afterthoughts offered to justify his actions based on patronage. ⁵ It further concluded that, under Branti, the next relevant inquiry was whether political loyalty to Ybanez had been shown by him to be an appropriate qualification for the office of deputy sheriff, finding that it had not. As to Mrs. McBee, the court determined that she had been discharged for her protected expressions on a question of public interest: the wholesale release of former employees for political reasons. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). So holding, the court granted substantial relief to all plaintiffs. On appeal, a panel of our court reversed, holding that the close working relations and mutual confidence demanded by service in such a small county office placed the four discharged deputies within an exception to Elrod/Branti, that the trial court's holdings as to the reasons for their discharge were clearly erroneous, and that the protests of Mrs. McBee to higher authority were so destructive of the close working relationship with the sheriff necessary to satisfactory performance of her job as to be unprotected. For reasons to be stated, some grounded in authority unavailable to the trial court or our panel, we vacate and remand.

Supreme Court Authority

Building on earlier decisions that forbade limiting constitutional rights as a condition of awarding a governmental benefit, ⁶ a plurality of the Supreme Court addressed the specific issue of patronage discharges of public employees in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), a "wide-ranging opinion." Id. at 374, 96 S.Ct. at 2690 (Stewart, J., specially concurring). Justices Stewart and Blackmun--necessary votes in support of the judgment--joined only because, in their stated view, a "nonpolicymaking, nonconfidential governmental employee [cannot] be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs." Ibid. This prohibition, absolute in tone, was supported only by citation to Justice Stewart's opinion for the Court in Perry, which likewise speaks in unqualified terms. ⁷ To be sure, the Elrod plurality paid its respects to the notion that "the prohibition on encroachment of First Amendment protections is not an absolute." 427 U.S. at 360, 96 S.Ct. at 2683. When it came to stating the terms upon which such encroachments would be condoned in the context of public employment, however, its language was such that the reader might have been pardoned for concluding that he stood in the presence of a creature more rare even than the ordinary, garden-variety, compelling state interest:

In short, if conditioning the retention of public employment on the employee's support of the in-party is to survive constitutional challenge, it must further some vital government end by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained must outweigh the loss of constitutionally protected rights.

427 U.S. at 363, 96 S.Ct. at 2685.

In the face of such language, taken together with that of Justice Stewart's special concurrence, many courts took the Elrod prohibition to be virtually absolute, ⁸ inquiring only whether a public employee's "exercise of his speech rights was a significant basis for his discharge." Stapp v. Avoyelles Parish School Board, 545 F.2d 527, 534 (5th Cir.1977).

But if lower courts were perhaps justified in taking the foregoing exception to Elrod 's rule with a grain of salt, another of a more practical nature was stated by the plurality opinion: that for policymaking employees. The language employed here makes plain that it is to be taken seriously:

A second interest advanced in support of patronage is the need for political loyalty of employees, not to the end that effectiveness and efficiency be insured, but to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate. The justification is not without force, but is nevertheless inadequate to validate patronage wholesale. Limiting patronage dismissals to policymaking positions is sufficient to achieve this governmental end. Nonpolicymaking individuals usually have only limited responsibility and are therefore not in a position to thwart the goals of the in-party.

427 U.S. at 367, 96 S.Ct. at 2687. And so, as to Court authority directly significant for present purposes, the matter rested until 1980, when Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574, was handed down.

While Elrod concerned Republicans purged from a large, metropolitan sheriff's office merely because of their national political affiliation, Branti v. Finkel comes closer home in some respects to our present concerns. Finkel and a colleague, Tabakman, were two of nine assistant public defenders to be purged (as Republicans), although competent workers, to make place for Democrats by the Fathers of a suburban New York county. Upholding an injunction against the proposed purge, the Court--this time by 6-3 majority--cast further light on its Elrod rule and narrowed the "policymaking" exception to it.

In the course of rejecting a contention that Elrod prohibits only dismissals resulting from an employee's refusal to submit to a demand to change his political affiliation, Justice Stevens appeared to narrow the Elrod rule significantly. The first and more important of these articulations, for today's purposes, is the injection at two points into the Court's statement of the Elrod rule of the adjective "private" as modifying "political beliefs" 445 U.S. at 515, 517, 100 S.Ct. at 1293, 1294. Since whether or not the beliefs of the Elrod plaintiffs were private or public that opinion does not say, we can only read this restatement of the rule there laid down as a significant limitation upon it. ⁹

In addition to articulating the Elrod rule in a narrower form, the Branti court restated and narrowed the significant exception made to it by the Elrod plurality:

It is equally clear that party affiliation is not necessarily relevant to every policymaking or confidential position. The coach of a state university's football team formulates policy, but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa, no matter which party is in control of the state government. On the other hand, it is equally clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments. In sum, the ultimate inquiry is not whether the label "policymaker" or "confidential" fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.

445 U.S. at 518, 100 S.Ct. at 1295 (emphasis added).

Such was the state of direct Supreme Court authority at the time of the trial...