Ramey v. Harber, Civ. A. No. 76-0846.

• Decision Date: 22 April 1977
• Docket Number: Civ. A. No. 76-0846.
• Citation: 431 F. Supp. 657
• Parties: Clarence RAMEY et al., Plaintiffs, v. Paul T. HARBER, Defendant.
• Court: U.S. District Court — Western District of Virginia

431 F. Supp. 657

Clarence RAMEY et al., Plaintiffs, v. Paul T. HARBER, Defendant.

Civ. A. No. 76-0846.

United States District Court, W. D. Virginia, Abingdon Division.

April 22, 1977.

COPYRIGHT MATERIAL OMITTED

Walton D. Morris, Jr., Bradshaw & Morris, Ltd., Big Stone Gap, Va., for plaintiffs.

Edgar Bacon, Richard Larry Lewis, Commonwealth Atty., Jonesville, Va., for defendant.

MEMORANDUM OPINION

FINDINGS OF FACT AND CONCLUSIONS OF LAW

TURK, Chief Judge.

This action is predicated on 42 U.S.C. § 1983 et seq. and came to be tried by this court. Perceiving this case to involve certain factual issues of great import, the court empaneled an advisory jury to assist the court in the consideration of such questions, pursuant to Rule 39(c) of the Federal Rules of Civil Procedure. Following trial of this case, conducted from January 26, 1977 through January 28, 1977, the advisory jury responded to special verdict form questions with answers totally favorable to plaintiffs. By way of a motion for judgment notwithstanding the verdict, defendant would now have the court reject the advisory jury's findings. Throughout the development of this case, defendant has contended that the resolution of the issues turns solely on an interpretation of Virginia law. Defendant further contends that even if the jury's findings are adopted, judgment against the defendant cannot be effected since the case involves application of newly developed constitutional law which should properly be applied prospectively. Inasmuch as all post-trial arguments have been heard and all post-trial briefs filed, the court now proceeds to consider defendant's contentions and to make appropriate findings of fact and conclusions of law.

STATEMENT OF THE FACTS NOT AT ISSUE

Up until December 31, 1975, plaintiffs in this action held positions as deputy sheriffs in Lee County, Virginia. All of the plaintiffs were appointed as deputy sheriffs by Curtis H. Flanary who was Sheriff of Lee County from January 1, 1972 through December 31, 1975. Mr. Flanary was elected Sheriff in the general election held in November of 1971. Apparently, upon assuming office, Mr. Flanary hired a totally new set of deputies, retaining none of the deputies who served under his predecessor, a Democrat. Mr. Flanary stood for re-election to the Office of Sheriff in the general election held in November of 1975. He was opposed by the defendant, Paul T. Harber, who ran as the candidate of the Democratic Party. Mr. Harber proved to be the successful candidate and, accordingly, commenced preparations for the assumption of office at 12:01 a. m. on January 1, 1976.

Apparently, Sheriff-elect Harber proceeded to issue formal application forms to all individuals who indicated an interest in the position of deputy sheriff. It is uncontroverted that only one of the named plaintiffs made a formal application for employment as a deputy under Sheriff Harber.¹ Out of the more than fifty applicants, Sheriff Harber selected ten candidates to serve as deputies. None of the plaintiffs were numbered among the successful applicants. However, the record reveals that during the period between the election and the time of Sheriff Harber's assumption of office, most of the plaintiffs expressed an active interest in the status of their jobs.² Indeed, such interest apparently resulted in the development of a degree of friction between some of the deputies and Sheriff-elect Harber. On the night of December 31, 1975, Sheriff-elect Harber and his staff of deputies went to the Lee County Sheriff's Office so as to prepare to commence execution of the duties of Sheriff at 12:01 a. m. on January 1, 1976. Sheriff-elect Harber and his staff were confronted by many of Sheriff Flanary's deputies who again requested information on their status. As in previous discussions, Sheriff-elect Harber told the Flanary deputies, in essence, that their status was solely the concern of their principal, Sheriff Flanary, and that their continued employment was not a matter for his (Harber's) comment. Sheriff-elect Harber and his deputies began execution of the duties of the office of Sheriff on January 1, 1976.

It is uncontroverted that all of the plaintiffs campaigned actively in Sheriff Curtis Flanary's bid for re-election. At the time of trial, it became apparent that the motivation for such political activity varied from plaintiff to plaintiff. Several of the plaintiffs attributed their political work to a long-standing affiliation with the Lee County Republican Party. Other plaintiffs noted that they were interested in maintaining Sheriff Flanary in office so that they might be assured of keeping their own jobs. Indeed, Sheriff Flanary testified that he expected all his deputies to work for him in the campaign. Sheriff Flanary further observed that he felt that this was only fair, since all his predecessors had been able to rely on similar support. In this context, it becomes clear that this case involves the operation of the Virginia variant of the political substructure commonly known as the patronage system. To place the matter in clearer focus, the court notes that in many Virginia counties, a change in the political party controlling the Sheriff's office is often accompanied by a complete change of personnel in the deputy positions.³ As discussed infra, such a "house cleaning" has long been considered permissible under the applicable Virginia law concerning appointment of Sheriff's deputies.

Subsequent to the assumption of office by Sheriff Harber, plaintiffs attempted to secure reinstatement to their previous positions of deputy sheriff. Initially, they filed grievances pursuant to § 15.1-7.1 of the Code of Virginia (1950), as amended. However, as currently constituted, the grievance mechanism established under § 15.1-7.1 is inapplicable to deputies of constitutional officers such as the Sheriff. However, on September 27, 1976, plaintiffs commenced this court action, alleging that defendant's course of conduct operated so as to deprive plaintiffs of certain rights guaranteed under the First and Fourteenth Amendments to the Constitution of the United States. Jurisdiction of this court is pursuant to 28 U.S.C. § 1343 and is uncontested. The action was originally brought pursuant to 42 U.S.C. §§ 1983, 1985, 1986, and 1988. In the complaint as eventually developed before this court, plaintiffs specifically allege that their employment as deputy sheriffs was discontinued solely because of their political affiliations and that the conduct of defendant operated so as to restrict and infringe upon plaintiffs exercise of their freedom of political belief and association.⁴ In their initial complaint, plaintiffs sought injunctive, monetary, and declaratory relief. The court denied plaintiffs' motion for preliminary injunctive relief by order dated November 19, 1976, finding that since all plaintiffs had already become separated from service with the Sheriff's office, no showing of irreparable injury had been made. The court also based this denial on the fact that an expedited trial date had already been granted. Plaintiffs subsequently appealed the court's denial of preliminary injunctive relief to the Court of Appeals for the Fourth Circuit, where such appeal is pending to date.

RELEVANCE OF ELROD v. BURNS

In the development and trial of the issues of this case, both sides recognized the interplay of the recent United States Supreme Court decision in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Since the circumstances of Elrod are somewhat similar to those involved in the instant case, the court deems it relevant to summarize the holdings in Elrod, prior to a discussion of the factual issues and defendant's contentions in this case.

Elrod involved the actual discharge and threat of discharge allegedly suffered by several employees of the office of Sheriff in Cook County, Illinois, following a change of party in the position of Sheriff. The affected employees alleged that the conduct of Sheriff Elrod operated so as to violate rights secured under the First Amendment. The case reached the United States Supreme Court on Sheriff Elrod's appeal from an order of the Court of Appeals for the Seventh Circuit which overturned the judgment of the District Court denying preliminary injunctive relief.⁵ In a divided majority opinion, the Supreme Court affirmed the judgment of the Seventh Circuit. Clearly, Elrod involved the operation of the Illinois system of political patronage.

Three of the Justices who comprised the majority in Elrod recognized a need to evaluate the propriety of the political patronage system in light of the safeguards of First Amendment freedoms established by such cases as Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Mr. Justice Brennan, joined by Mr. Justice White and Mr. Justice Marshall, made the evaluation and found, inter alia, as follows:

"Patronage practice falls squarely within the prohibitions of Keyishian and Perry. Under that practice, public employees hold their jobs on the condition that they provide, in some acceptable manner, support for the favored political party. The threat of dismissal for failure to provide that support unquestionably inhibits protected belief and association and dismissal only penalizes its exercise." 427 U.S. at 359, 96 S.Ct. at 2683.

Finding no compelling reasons for restraint of such freedoms, Mr. Justice Brennan deemed the patronage system to be constitutionally invalid.

Mr. Justice Stewart and Mr. Justice Blackmun concurred in the judgment of the other majority members. However, Mr. Justice Stewart, joined by Mr. Justice Blackmun, specifically found the circumstances of Elrod to be too narrow in scope so as to permit a definitive characterization of the constitutional status of all patronage systems. Nevertheless, Mr. Justice Stewart...