*2 HALL, Before WIDENER and Circuit *, Judges, and HOFFMAN Senior District Judge. HALL,
K. K. Circuit Judge: Cooper, formerly deputy David E. sher- Spotsylvania County, Virginia, iff in filed his suit under U.S.C. § Johnson, Jr., M. Ralph Sheriff employer, alleging that he had been dismissed from job exercising for his constitutional speak on an issue concern. At the close of the evidence the district jury it was to court instructed alia, determine, inter whether in a speech, proposed contained letter to the newspaper, was entitled to editor of a local protection.1 constitutional re- Cooper. post-tri- turned a verdict for After al motions the court set aside the ver- judgment for defendant dict and entered Johnson, holding question speech was constitutional- whether ly one for resolution protected was than the and then deter- court rather was not in fact mining that Although we find it unneces- protected. sary to the correctness of the determine agree we the latter ruling, former finding beyond dispute accordingly affirm. Johnson, who had been Chief
Sheriff Davis, B. W. defeated Deputy under Sheriff November, 1975, Davis in after heated Cooper election in which had endorsed and most of campaigned Cooper for Davis. Grad, Alexandria, (Hirschkop John D. Va. deputies re-appointed the other Davis were Grad, C., Stambaugh, Al- Gregory & P. E. Johnson, made certain or- but Johnson exandria, Va., brief), appellant. ganizational part by appointing changes, Inspector. Va., position Thomas Mills to the Harris, Fredericksburg, William H. evidence, degree conflicting while as to appellee. * was, fact, Hoffman, protected motivating District conduct E. Senior Honorable Walter Virginia, Judge discharge Sit- for the Eastern District of substantial factor in the decision to ting Designation. plaintiff; and whether the would have protected in the absence of the Doyle, Healthy City District 1. See Mt. conduct. The court withheld from the issue, finding second .that Sheriff Johnson’s three-part The court instructed testimony conclusively own established Healthy: the conduct test of fact. fact, enti- claims to be protection; whether tled to constitutional Cooper like and stated did not the letter to animosity, pub- shows Johnson, some lished, and that department Mills or respect would become the depart- throughout laughingstock resulted dissension state. day. fired the
ment.
next
The Free Lance
September
litigation
On
central
issue in this
dealing
“whether,
with
published
this,
an article
in a context such as
Star
[Coo
*3
burglary
by
case
solving of a
per’s] expression
protected.”
recent
is
Kannisto v.
Department. Only In-
Spotsylvania Police
Francisco,
City
and
of San
article,
was named in the
vestigator
841,
Mills
denied,
cert.
cracking
the credit for
given
Mills was
and
After this resolve issue: paper, 1st it day’s September appeared Cooper’s speech whether statements in [his antiques case on stolen that the Harbin were any person directed toward letter] only one Police by was handled Officer. with whom he would normally in contact being correct. don’t work; This is far from in daily the course of his whether the Investigator with know if the interview speech might discipline threaten by either the work Mills failed to reveal supervisors harmony immediate among or if the paper other involved co-workers; officers whether Cooper’s relationship print failed to it. target with the of his speech was a working Stanley get was the first to relationship Officer Mike for which personal loyalty and He a break in the case. informed confidence were necessary; whether Coo re- per’s the information he Investigator speech would damage tend to the pro Stanley and Inves- reputation ceived. When Officer fessional targets its or foment tigator given were several items Mills and controversy among conflict his co-work ers; been stolen from Mrs. believed to have Cooper’s speech reflected a Harbin, they by first identified Of- were of opinion difference general an issue of in- ficer Stewart. Officer Stewart first public concern on which open free and de incident in vestigated bate is vital to decision-making by informed electorate; took fingerprints, photos, obtained 19 and Cooper’s and whether em report at that It complete a full time. ployment only was substantially tangen appeared kept items taken that the tially subject involved in the matter of his making all, it almost im- speech those involved the issue is whether he spoke —in possible employee to trace. out as an or as a member of the public. resi- search warrant Brooks by Investigator Mills dence was obtained Pickering plaintiff, teacher, In a Deputy and warrant Stewart. writing a letter the editor Mills, Investigator Deputy carried out by a newspaper which he budg- criticized Stewart, Peyton, Dep- Deputy myself and etary policies of the school board. The uty we also were assisted Cooper, David speech Court found issue at related at It Deputy Stanley Mike this time. general concern, to matter of involved 8V2hours overtime working no of discipline interests or harmony were Stewart, af- Deputy Peyton, myself, and threatened since the relationship teacher’s having ter a full shift. worked with his school board was not close work- enlighten Police you This letter is to ing relationship, sum, plaintiff and indi- Department. No Work is done spoken private had out as a citizen. There- vidual can all. It’s a team effort. do it Pickering’s fore speech was entitled to con- letter, protection. contrast, it Cooper gave Instead of stitutional measur- posting the ing was “shocked” in this against to Sheriff Johnson. Johnson facts case the Picker- Johnson, question that C/A No. beyond 76-0523-R yardstick, ing entitled to such (E.D.Va., 7, 1977), was not Opin- Memorandum Cooper’s Oct. its adopt we point On this protection. City ion Kannisto v. at 8-9. See Coun- court, of the district analysis entirety the Francisco, ty of supra. San the court’s resolutions we discount although view Since in our “the evidence is such fact. of disputed weighing credibility without Pickering first four think We can be witnesses there but one reasonable case. comment require little factors verdict,” conclusion as to against Investi- letter was directed District No. supra, we find it and, indirectly, Sheriff Mills gator unnecessary decide whether the Picker- Depart- Police Spotsylvania Johnson. ing balancing test in a proper case is one (11-man) organization a small ment for the court or for the jury. Sheriff John- co-operation confidence mutual which judgment son is entitled to notwithstanding letter related to essential. are Neely the verdict. Cf. v. Martin K. Eby of that administration of internal *4 matter Co., Inc., Construction S.Ct. any public to matters of organization, not 75 (1967). 18 L.Ed.2d necessarily have a dis- debate, and would least, very in atti- the effect —at ruptive AFFIRMED WITH DIRECTIONS TO Mills, who was Investigator toward tudes ENTER JUDGMENT N.O. V. much receiving too credit to be alleged The letter department. of the work the WIDENER, Circuit Judge, concurring: already-existing dis- the would also escalate office, the the in the to detriment of sension I opinion concur in the of the court and in department. whole result; the yet I would add a word. discussing Pickering the last two fac- I nothing think this case has to do with tors, cogently the district stated: expression freedom of in the Pickering on which wrote was The matter sense. The record beyond discloses doubt general public not a matter of concern. private the complaint this was of a speech clear on debated publicly It is disgruntled deputy, disappointed that his heavily weighs matters more in the Pick- put name was not newspaper, the local speech than to ering balance intended who plainly intended to bait and insult the purposes. The exist- private serve one’s sheriff, employer, and to claim immuni- personal pique hope of a or for vin- ence ty by letter, the device of a ostensibly at downgrades substantially Coo- dication least, to the paper. directed editor of the rights public case since the per’s in this The deputy only expected could have to be Cooper’s private not interested in ambi- fired, which was what happened. tions.
Finally, Cooper’s employment situation subject central the was to matter of HOFFMAN, WALTER E. Senior District clearly seeking speak He was to speech. Judge, dissenting: Spotsylvania as a sheriff of deputy out The district concluded that the signed as such. himself question of whether freedom of who is a em- Speech by public citizen expression constitutionally protected was subject which is the of ployee on matter was by one for resolution the court rather view, in this ongoing debate Court’s than jury. the The has held speech legitimate public more than and, issue need not met to be under employee that seeks create a debate case, . speech where none existed. circumstances of this conclusion, any court had we will 2. Since the district ruled discount factual dis- law, putes hinged was one for the court as matter of which in whole or in issue disputed credibility free to issues of fact. he felt resolve resolutions. See deciding only we are that the District No. Since evidence 1975). case would admit of but one reasonable Answer, no. I do believe protected. not in fact can avoid the issue raised that we awards actual dam- as under the I feel district court $4,000. ages amount of balancing test of this facts Assuming arguendo that the submission Education, Pickering Board balancing test under Pickering and (1968), as L.Ed.2d S.Ct. Healthy proper Mt. for the jury, the City Healthy Bd. of supplemented by adequately supports record verdict. 274, 97 568,50 Doyle, 429 Educ. v. letter, by Cooper, written was innocu- (1977), factual de may involve L.Ed.2d was, extent, ous at It to a best. limited would reverse. terminations a,matter concern; e., directed i. course, There, be may cases which accuracy of newspaper reporting. It may unprotected nothing derogatory contained as to the in- of law. In between are those a matter Mills, vestigator, or the defendant sheriff. speech may may where the not be cases It was not critical of the sheriff or his the nature depending upon protected, department. employee’s job, speech may the effect Manifestly, the letter was a motivating or job, and the intent of the have substantial factor in the decision dis- employer discharging employee. In charge as the sheriff concedes. situations, is my these latter belief that a It was probably sole cause as Cooper required proper determination is under be a competent deputy from the instructions court. personnel sheriff and his record indicated court properly district submitted *5 no adverse marks. Assuredly, the question issues,1 jury answered the fol- three as as to plaintiff whether the would have been
lows: event, any without regard to balance,
(1) protected conduct, the weighing plaintiff’s right was the and, On for jury issue, on this speech against jury of freedom of the the found the To duty right preserve say jury to sheriff. now that sheriff’s and the had no play balancing to promote well-being and the the test in my of judgment, error. department, plaintiff sheriff’s has a proven by preponderance of the Wagle v. Murray, (9th Cir. evidence and under the instructions' 1976), arose in a similar context. The case the court that his conduct in writ- of a involved determination of whether a the letter to the ing editor and teacher’s employment was terminated be- presenting sheriff, the letter to the cause of the exercise of First Amendment in view the sur- of circumstances activities, or because he was an ineffective rounding impli- the incident and the teacher.2 The was teacher chairman the of thereof, protected cations was by the local engaged alleged- ACLU and in several First Amendment? ly jury radical activities. The awarded Answer, yes. $50,000 the sum of which the trial the a proven by prepon- judgment Has sheriff court and n. set aside entered o. reversed, derance of the evidence that he v. holding The Ninth Circuit that judgment improper would have reached the same n. v. deci- o. was where there discharge plaintiff jury to even in the a sion was evidence from which could infer absence of conduct? that a First Amendment had Actually questions complained were submitted but mits that he five never to as to punitive damages any prior the two to and last referred of these matters to at the time of damages jury quite rejected no discharge. jury properly the concluded that such awarded. should be this affirmative defense. The now jury finding appears and takes issue with the to case, attempted sheriff to In the to hold that acts amounted insubordi- which, prove he a number of factors contended as a of nation matter law. trial, prompted Cooper’s ad- dismissal. He at 564 holding was Circuit actions
violated;
a
basis for
and that
reasonable
constitutionally protected as matter
if,
the whole
not
a
even
on
existed
the verdict
opinion goes
of law as the
on and discusses
teacher was
record,
appeared that
it
person
a
between
act-
the inherent conflict
being ineffective. The Su-
discharged for
a
supervisory position
a
also
ing in
who is
case,
431
remanded
preme Court later
Norbeck,
and,
of a union
member
935, 97
S.Ct.
had no
principal,
he was a school
he
since
light Mt.
of
(1977), for reconsideration
ne-
right to serve as
union
constitutional
remand,
401, 403,
Healthy. On
gotiator
supervised.
the teachers
giv-
the instructions
Ninth Circuit held
require-
en to the
conformed
F.2d
Dist. No.
it
Healthy,
was for
and
ments of
(10th
Cir.
held
judge,
to determine
not
v.
judgment
entitled to a
n. o.
was
would have been dis-
the teacher
her employment
because
nonrenewal of
Supreme
charged
any
Court
event.
her First Amendment
contract violated
certiorari,
1014, 98
has since denied
limited
engaged
very
where she
rights
729, 54
L.Ed.2d
participation
in an effort
students
underground newspaper;
start
relationship between
agree
holding as matter of law that she
and deputy
and sheriff
teacher-employer
participation
being discharged
her
probably
identical.
It is
need
sheriff
protected activity.
discipline
and
problems
true that
of morale
ema-
the recent
trend
decisions
enforcement
With
important
in law
are more
Supreme
demon-
from the
Court
nating
bodies,
not follow as matter
but
does
type
strating that issues
are
to the sheriff-
questions pertaining
law that
"trier-of-fact,”
agree that
I cannot
relationship are to be re
deputy sheriff
present case,
under all the facts
consideration, especially
from
moved
circumstances,
proper for review
where,
properly
as in this
n. o.
judgment
the district court under
Gain,
v.
Byrd
issue.
instructed
reverse
enter
proceeding.
I would
1977).
(9th
Kannisto v.
F.2d 553
Cf.
judgment on the verdict.
F.,
F.2d
City and
S.
Kerr,
1976);
F.2d
Gasparinetti
*6
(3rd
cert. denied 436 U.S.
2232,
investigator Mills or the defendant. PALMER, Appellant. Berry L. cases the district court
Two 78-5047, do In Norbeck v. Dav- require discussion. Nos. 78-5048. Dist., enport Comm. Sch. Appeals, Court of United States 1976), a was not re- principal school Fourth Circuit. hired, at least due to the fact that 6, 1978. Argued Oct. the local teach- negotiator he acted as Jan. Decided 1979. ers’ union. The found for school say did appeal, district. On Denied March Certiorari exercising constitu- whether Norbeck See for the court and not tional However, opinion as I jury. read appear Eighth Norbeck would