Tate v. Yenoir

• Decision Date: 05 April 1982
• Docket Number: Civ. No. 81-10015.
• Citation: 537 F. Supp. 306
• Parties: Harold TATE, Plaintiff, v. Charles YENOIR, Defendant.
• Court: U.S. District Court — Western District of Michigan

537 F. Supp. 306

Harold TATE, Plaintiff, v. Charles YENOIR, Defendant.

Civ. No. 81-10015.

United States District Court, E. D. Michigan, N. D.

April 5, 1982.

Mark J. Brissette, Bay City, Mich., for plaintiff.

A. T. Lippert, Jr., Saginaw, Mich., for defendant Arenac County.

Owen Cummings, Livonia, Mich., for defendants Sheriff's Dept. and Yenoir.

MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

Stated generally, the question before the Court is what, if any, constitutional protection is afforded an undersheriff when he is subpoenaed to testify in a criminal trial as a rebuttal witness and testifies for the defendant and against the state and fellow undersheriffs. Plaintiff was fired as a result of his testimony. Under 42 U.S.C. § 1983, plaintiff claims his firing unlawfully deprived him of, inter alia, his First and Sixth Amendment rights. The matter is before the Court on defendant's motion pursuant to F.R.s Civ.P. 12(b)(6) and 56.

FACTS

The following may be discerned from the pleadings and other documents filed herein. F.R.Civ.P. 12(b)(6).

Charles Yenoir, defendant, was elected Sheriff of Arenac County in November, 1976. Harold Tate, plaintiff, was thereafter appointed to the position of undersheriff. Late in 1978, Buel Evans was prosecuted in Arenac County on the charge of assault. During the investigation and trial, accusations were made against Arenac County Deputy Sheriffs Wissmiller and Hill alleging the use of excessive force against Evans. While the Court will refrain from reproducing all the details in this regard, it is sufficient to state at this juncture that defendant ordered plaintiff to investigate the accusations made by Evans.

At the Evans trial, a Deputy Mosciski testified that Wissmiller and Hill were good officers. Plaintiff was subpoenaed to rebut Mosciski's testimony. Based on plaintiff's investigation of the Evans matter and discussions with Mosciski, among others, plaintiff testified under oath that he believed Wissmiller and Hill were lying as to the events surrounding the Evans incident and arrest. The jury acquitted Evans.

After the trial, the undersheriffs in the Arenac County Sheriff Department submitted a petition to the defendant seeking plaintiff's resignation. Plaintiff was fired on January 26, 1979, after receiving a two week notice. Both parties acknowledge that a consequence of plaintiff's testimony was dissention within the department. The defendant claims, however, that plaintiff was fired because of poor job performance and for the "benefit" of the department.

DISCUSSION

I. Plaintiff's Sixth Amendment Claim

The Sixth Amendment to the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. (Emphasis added.)

Plaintiff was not the criminal defendant in the Evans case. Thus, the issues are (1) whether plaintiff may assert Evans' Sixth Amendment rights vicariously and thereby state a claim under 42 U.S.C. § 1983, and (2) whether plaintiff may assert a Sixth Amendment right individually or independent of Evans and thereby state a claim under 42 U.S.C. § 1983.

The Court observes that Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969) says that "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." Consequently, the Supreme Court rejected the thesis that a third party possesses an "independent Constitutional right ... to exclude relevant and probative evidence because it was seized from another in violation of the Fourth Amendment." Id. This same logic has been applied in the context of the Sixth Amendment with the same result. Gannett Co. Inc. v. De Pasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).

It is clear that the subject of the amendment is the "accused" "in all criminal prosecutions." Plaintiff obviously was not the defendant in the Evans trial. The Court does not believe that a fair interpretation of the Sixth Amendment could hold that the rights secured by the amendment are applicable to a person other than an accused. Indeed, the case law reviewing that amendment and the issues raised therein have concerned only the accused. See, e.g. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (the right of an accused to have compulsory process for obtaining witnesses in his favor); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) (the right of an accused to a speedy trial); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (the right of an accused to be confronted with the witnesses against him); Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (the right of an accused to the assistance of counsel); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (the right of an accused to a public trial); Angel v. Overberg, 664 F.2d 1052 (CA 6, 1981) (the right of an accused to a fundamentally fair trial).

Since the rights secured by the Sixth Amendment are personal to an accused in a criminal trial, defendant's motion to dismiss as to this claim is hereby GRANTED.¹

II. Plaintiff's First Amendment Claim

Defendant maintains that plaintiff's testimony was not "protected speech" because it did not involve "political speech or matters of public opinion." He asserts further that the courtroom is not the "type of public forum" from which matters of public opinion normally flow. He concludes that plaintiff's testimony is not afforded First Amendment protection and therefore plaintiff fails to state a cause of action against defendant. The gravamen of defendant's argument however is that since plaintiff's testimony had a disruptive impact on the Sheriff Department, then plaintiff's speech was not protected under the First Amendment.

Relying on Hoopes v. Nacrelli, 512 F.Supp. 363 (ED Pa.1981), plaintiff argues that he has pled a cognizable First Amendment claim for purposes of 42 U.S.C. § 1983. In Hoopes, the plaintiff, claimed under 42 U.S.C. § 1983, that his First Amendment rights were violated when he was fired after testifying against Mayor Nacrelli at Nacrelli's federal criminal trial on corruption charges. In that case, the Court ruled "with respect to Hoopes' First Amendment claim, there is no question that his testimony at trial did constitute constitutionally protected speech." Hoopes, Id. at 364.

Since plaintiff was a public employee, the Court must initially turn to the "two step analysis" established in Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979); Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); and Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). See, Anderson v. Evans, 660 F.2d 153, 158 (CA 6, 1981). The "first step" of that analysis requires a determination of whether the speech exercised is protected under the First Amendment in the context of public employment. Anderson, supra, 660 F.2d at 158. This determination requires a balancing of the needs of the governmental body to maintain and promote the efficient and harmonious operation of public services against the rights of the individual government employee, as a citizen, to comment on matters of public concern. Id.

Thus, in determining whether the speech exercised is protected under the First Amendment, the Court considers the following factors, among others:

1. Whether plaintiff, in the course of his activities, made statements which were directed against a person with whom he had regular contact within the daily course of his duties;

2. Whether plaintiff's activities created a problem with maintaining discipline by immediate superiors or with maintaining harmony among co-workers;

3. Whether the relationship between superior and subordinates was of such a personal and intimate nature that plaintiff's activities seriously undermined the working relationship between them;

4. Whether plaintiff's activities substantially impeded the plaintiff's performance of his official duties; and

5. Whether the plaintiff's activities related primarily to matters of concern to the plaintiff personally, as opposed to matters of concern to the public generally.

See, e.g. Givhan, Mt. Healthy and Pickering, supra; Doyle v. Mt. Healthy City School District Board of Education, 670 F.2d 59 (CA 6, 1982); Hildebrand v. Board of Trustees of Michigan State University, 662 F.2d 439 (CA 6, 1981); Hickman v. Valley Local School District Board of Education, 619 F.2d 606 (CA 6, 1980); Barrett v. Thomas, 649 F.2d 1193 (CA 5, 1981); Schneider v. City of Atlanta, 628 F.2d 915 (CA 5, 1980).

The Court admits that the applicable case law is unclear on the question of how much probative weight should be accorded each of the above enumerated factors. See Anderson, supra, 660 F.2d at 160-166 (Rice, J., sitting by designation, dissenting). Nevertheless, plaintiff admits that his testimony caused significant division between the undersheriffs. Indeed, every co-worker demanded his resignation because of his testimony. While plaintiff's testimony involved matters of public concern, there is no escaping the conclusion that plaintiff's statements had an effect on the necessarily close working relationship of the undersheriffs and had, in substantial measure, a disruptive impact on the quality of services provided by the Sheriff Department. Under a strict First Amendment analysis, pursuant to Givhan, Mt. Healthy and Pickering, supra, ...