Ramey v. Harber
| Decision Date | 15 December 1978 |
| Docket Number | Nos. 77-1927,77-1928 and 78-1010,s. 77-1927 |
| Citation | 589 F.2d 753 |
| Parties | Clarence RAMEY, James Bledsoe, David Curtis Minton, Chester Fugate, Herschel Woodward, Onza Collier, Danny Moore, Ronnie Fortner, James Hensley, Muriel Gibbons, James Hamilton, Marion Hobbs, Appellees, v. Paul T. HARBER, Individually and as Sheriff of Lee County, Appellant, and Board of Supervisors of Lee County, W. Quentin Littrell, Individually and as member, Roy Lucas, Individually and as member, Ralph Robinette, Individually and as member, C. B. Waddell, Individually and as member, J. K. Newman, Individually and as member, Bill Jessee, Individually and as member, W. R. Hines, Individually and as member, A. T. Burchette, Individually and as member, Defendants. Clarence RAMEY, James Bledsoe, David Curtis Minton, Chester Fugate, Herschel Woodward, Onza Collier, Danny Moore, Ronnie Fortner, James Hensley, Muriel Gibbons, James Hamilton, Marion Hobbs, Appellants, v. Paul T. HARBER, Individually and as Sheriff of Lee County, Board of Supervisors of Lee County, W. Quentin Littrell, Individually and as member, Roy Lucas, Individually and as board member, Ralph Robinette, Individually and as member, C. B. Waddell, Individually and as member, J. K. Newman, Individually and as member, Bill Jessee, Individually and as member, W. R. Hines, Individually and as member, A. T. Burchette, Individually and as member, Appellees. Clarence RAMEY, James Bledsoe, David Curtis Minton, Chester Fugate, Onza Collier, Danny Moore, James Hensley, Muriel Gibbons, James Hamilton, Appellants, v. COUNTY OF LEE VIRGINIA, Board of Supervisors of Lee County, Virginia, W. Quentin Littrell, Roy Lucas, Ralph Robinette, C. B. Waddell, J. K. Newman, Bill Jessee, Jack Lee, A. T. Burchette, W. R. Hines, Appellees. Fourth Circuit |
| Court | U.S. Court of Appeals — Fourth Circuit |
Walton D. Morris, Jr. and Gary S. Bradshaw, Big Stone Gap, Va. (Bradshaw & Morris, Ltd., Big Stone Gap, Va., on brief), for appellants.
Edgar Bacon, Larry Lewis, Jonesville, Va., James P. Jones and Stephen M. Hodges, Abingdon, Va. (Penn, Stuart, Eskridge & Jones, Abingdon, Va., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, COWEN *, Senior Judge, and HALL, Circuit Judge.
The appellants, hereinafter the deputies or plaintiffs, held positions as deputy sheriffs in Lee County, Virginia, until December 31, 1975. Deputy sheriffs in Lee County are nonconfidential, nonpolicymaking public employees. The plaintiffs were appointed as deputy sheriffs by Curtis H. Flanary, a Republican who was elected sheriff in the general election of November 1971. His term was 4 years and he held that office from January 1, 1972 through December 31, 1975. Under the Virginia statute (section 15.1-48 of the Code of Virginia 1950, as amended), the deputies of Virginia sheriffs hold office only during the term of the sheriff who appointed them. Pursuant to that statute and in accordance with the custom that had prevailed for decades in Lee County and many other small counties in Virginia, Mr. Flanary hired an entirely new set of deputies, retaining none of those who had served under his predecessor, a Democrat.
In the general election of November 1975, Mr. Flanary was opposed by the appellee, Paul T. Harber, hereinafter Sheriff Harber or defendant, who ran as a candidate of the Democratic party. Lee County has a history of spirited partisan political battles, and the two major parties have been almost equally strong over the years.
Sheriff Harber won the election and as part of his plan to assume office on January 1, 1976, he issued application forms to all individuals who indicated an interest in the position of deputy sheriff. Only one of the plaintiffs made a formal application. All of the outgoing deputies had actively campaigned for the incumbent Flanary. Most of the plaintiffs had expressed an active interest in the status of their jobs. This resulted in some friction between the deputies and Sheriff-elect Harber, who informed them that their status was solely the concern of their principal, Sheriff Flanary, and that their continued employment was not a matter for Harber's comment. None of the plaintiffs was reappointed by Sheriff Harber. He refused to reappoint them solely because of their political beliefs and affiliations.
On June 28, 1976, 6 months after Sheriff Harber took office, the Supreme Court announced its decision in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), which held that the discharge of a nonconfidential, nonpolicymaking employee under a patronage system was a violation of the Constitution. A few months later, in September 1976, the ten Republican deputies of former Sheriff Flanary filed this suit, alleging that Sheriff Harber's course of conduct operated to deprive them of rights guaranteed under the First and Fourteenth Amendments to the Constitution. The original action was brought pursuant to 42 U.S.C. §§ 1983, 1985, 1986 and 1988. They sought injunctive and declaratory relief, permanent reinstatement in their former positions, back pay, attorneys' fees, and costs. The district court denied a preliminary injunction, but granted an expedited trial.
The district court dismissed the action as to the governing body of Lee County which had been joined in the suit against Sheriff Harber. However, in an opinion filed April 21, 1977, 1 the district court, relying on Elrod v. Burns, supra, held that the constitutional rights of the deputies had been violated and directed Sheriff Harber to reinstate and hire the deputies as his own, and to pay attorneys' fees of $15,000. The district court also found that Sheriff Harber had relied on existing law and custom in all of his actions and so declined to award the deputies back pay.
After an appeal had been noted by both parties, the deputies filed a second action against Lee County and its governing body, seeking payment from the County Treasury of back pay. The district court granted summary judgment, holding that the deputies had no claim against the county or its governing body.
In their appeal, the deputies claim they are entitled to an award of back pay, plus punitive damages, against Sheriff Harber, as well as relief against the County of Lee, its Board of Supervisors and members of that Board. The deputies also contend that the district court should have entered a declaratory judgment that section 15.1-48 of the Code of Virginia is unconstitutional.
We disagree with the district court's holding that Elrod v. Burns, supra, should be applied retroactively in this case, and reverse that part of the court's decision which reinstated plaintiffs and awarded attorneys fees of $15,000 and taxable costs to them.
In his first challenge to the district court's decision, Sheriff Harber makes a fairly persuasive argument that Elrod v. Burns has no application in this case on the ground that the facts upon which the Supreme Court based its decision are materially different from those presented here. In Elrod, the deputies, who held indefinite terms of appointment, were Discharged or threatened with discharge solely because "they did not support and were not members of the Democratic Party and had failed to obtain the sponsorship of one of its leaders." The Elrod plurality also found that in order to hold their jobs, the deputies were required to "pledge their political allegiance to the Democratic Party, work for the election of other candidates of the Democratic Party, contribute a portion of their wages to the Party or obtain the sponsorship of a member of the Party, usually at the price of one of the first three alternatives." (427 U.S. at 355, 96 S.Ct. at 2681.)
The factual situation before us is dissimilar in several significant respects. Section 15.1-48 of the Code of Virginia (1950 as amended) pursuant to which plaintiffs had been appointed provides as follows:
§ 15.1-48. Appointment of deputies; their powers; how removed.
The treasurer of any county or city, the sheriff of any county or city, any commissioner of the revenue, any county clerk and the clerk of any circuit or city court may at the time he qualifies as provided in § 15.1-38 or thereafter appoint one or more deputies, who may discharge any of the official duties of their principal during his continuance in office, unless it be some duty the performance of which by a deputy is expressly forbidden by law. The officer making any such appointment shall certify the same to the court in the clerk's office of which the oath of the principal of such deputy is filed and a record thereof shall be entered in the order book of such court. Any such deputy at the time his principal qualifies as provided in § 15.1-38 or thereafter, and before entering upon the duties of his office, shall take and prescribe the oath now provided for county officers. The oath shall be filed with the clerk of the court in whose office the oath of his principal is filed and such clerk shall properly label and file all such oaths in his office for preservation. Any such deputy may be removed from office by his principal. Such deputy may also be removed by the court as provided by § 15.1-63.
As the district court found, this statute contains the only authority for the appointment of deputy sheriffs and under its provisions the terms of the deputies in Virginia end with the term of their principal. Farmers' Bank of Southwest Virginia v. McGavock, 119 Va. 510, 89 S.E. 949 (1916). In the event Sheriff Harber had wished to retain the plaintiffs as deputies, the district court correctly found that they would have had to requalify and to take and prescribe the appointment oath. All of the plaintiffs were familiar with section 15.1-48 and knew that their appointments terminated with the expiration of Sheriff Flanary's term. They also were aware of the practice which had prevailed for many decades in Lee County and the other...
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