Jimmie McBee v. Jim Hogg County, Texas and Gilbert Ybanez, Javier Alfonso Hinojosa v. Jim Hogg County, Texas

McBEE, al., et Jimmie

Plaintiffs-Appellees, COUNTY, and Gil-

JIM HOGG TEXAS Ybanez, Defendants-Appellants.

bert HINOJOSA, et

Javier Alfonso Plaintiffs,

al., TEXAS, COUNTY, et

JIM HOGG

al., Defendants.

No. 81-2465. Appeals, Court of

United States

Fifth Circuit.

April Hogg County, lying

In Jim in rural boasting population South Texas and 6,000, less than nomination in the Demo primary cratic is tantamount to election to years local ago, office. Just over three statutory Gilbert embarked on his Ybanez four-year duly term as elected sheriff Although there. he offered reappoint to predecessor’s some employees po of his Gonzales, Hebbronville, Tex., Richard R. administration, sitions in his he made no Ramos, Laredo, Tex., Donato D. for de- plaintiff-appellant such offer to the five fendants-appellants. deputy Instead, sheriffs.2 he followed the county making established custom the Guerrero, Reed, Pope, Pope, Guerrero & place political supporters for his own at the Reed, Tex., Roger City, Rio Grande Contreras, expense Deputies Hinojosa, Fancher, plaintiffs-appellees; Corpus Rick Spencer, Serna and the first three of whom Christi, Tex., of counsel. actively supported predecessor’s pri his Alexandria, La., Christopher Roy, J. Paul mary campaign against Ybanez. He with Baier, La., Rouge, R. Baton for amici curi- unaccepted drew an Deputy offer to retain deputy ae certain former of Natch- sheriffs position McBee a lesser than that she itoches. predecessor had held under his after she

complained county authorities about the “unfairness” of Ybanez’s actions toward colleagues. her rights former This civil action followed. CLARK, Judge, BROWN, Before Chief GEE, RUBIN, GARZA, REAVLEY, POL- History Procedural ITZ, RANDALL, TATE, JOHNSON, WIL- court, concluding The trial the Su- LIAMS, GARWOOD, JOLLY, HIGGIN- preme Court decisions in Elrod3 Bran- DAVIS, Judges. BOTHAM and Circuit 4 applied fully public employment ti personal support decisions based on of an GEE, Judge: Circuit individual Democrat as to those based on Today we consider what constitutional affiliation, determined that Ybanez’s restraints burden the freedom of a local attempted justifications failing reap- reappoint elected official subordinates of Contreras, point Hinojosa and Serna were opponent his defeated to decline to do —or pretextual afterthoughts justify offered to so. patronage.5 his actions based It further that, Branti, concluded under the next rel- Facts and State Law inquiry political loyalty evant was whether facts, reiterate We such set out at to Ybanez had been shown him to be length panel opinion,1 as are neces- appropriate qualification for the office of sary understanding sheriff, to an deputy finding our resolution that it had not. As McBee, of the issue. to Mrs. the court determined that (5th Cir.1983). Burns, 1. 703 F.2d 834 3. Elrod v. 427 U.S. 96 S.Ct. (1976). L.Ed.2d 547 law, deputy 2. Under Texas sheriffs are the crea Finkel, 4. Branti v. sheriff, serving pleasure tures of the departing with him at the end of his term. (Vernon 1960); Tex.Civ.Stat.Ann. Trin art. 6869 Spencer. 5. None of nature was offered as to State, kle v. 59 Tex.Cr.R. 127 S.W. 1060 physical deficiency A claim of was offered as to Thomas, (1910); White v. 660 F.2d 680 arising sepa- Contreras and reservations from Cir.1981). shooting rate incidents as to the other two. governmental protected confidential discharged for [can- she had been discharged with dis- public inter- or threatened expressions on not] charge job satisfactorily of former em- that he is release the wholesale est: Healthy Mt. ground reasons. the sole of his performing ployees Doyle, Board Education Ibid. prohibition, This City beliefs.” tone, supported only by absolute sub- granted (1977). holding, the court So Stewart’s citation to Justice a appeal, On plaintiffs. to all relief Perry, speaks stantial which likewise in Court reversed, holding that panel of our the Elrod sure, terms.7 To be unqualified mutual con- working relations and close paid respects its to the notion that plurality in such a by service demanded fidence prohibition on encroachment of First “the the four dis- county placed office small protections is not an Amendment abso- exception to deputies an charged within 360, 427 U.S. at 96 S.Ct. at 2683. lute.” Elrod/Branti, court’s hold- the trial that stating the terms When it came for their the reasons ings as to such encroachments would be con- erroneous, pro- and that clearly were public employment, of doned the context authority higher McBee to tests of Mrs. however, language that its was such working close of the so destructive might pardoned reader have been for con- necessary to relationship with the sheriff cluding presence that he stood in the job as to satisfactory performance of ordinary, creature more rare even than the stated, unprotected. For reasons be be compelling state interest: garden-variety, authority unavailable to grounded in some short, conditioning if the retention of panel, vacate and or our the trial court employee’s on the remand. support in-party is to survive con- challenge, further it must stitutional Authority Supreme Court government end a means some vital Building on earlier decisions restrictive of freedom of is least limiting rights as a constitutional forbade achieving belief and association awarding governmental a bene of condition end, gained must out- and the benefit fit,6 Supreme ad plurality of the Court a constitutionally protect- weigh the loss of patronage of dis specific issue dressed rights. ed employees in Elrod v. charges of 363, 96 S.Ct. at 2685. Burns, 96 S.Ct. 49 427 U.S. language, taken to- In the face of such (1976), “wide-ranging opin a 547 L.Ed.2d spe- gether with that of Justice Stewart’s (Stewart, 374, 96 at 2690 Id. ion.” El- concurrence, many courts took cial Stewart J., concurring). Justices specially absolute,8 virtually rod prohibition be necessary support votes and Blackmun — public employee’s because, inquiring only whether a only judgment joined — signifi- speech rights was a of his non- “exercise view, “nonpolicymaking, a their stated constitutionally protect- Sindermann, person of his because 92 S.Ct. Perry 408 U.S. associations, (1972); Keyishian his exercise of v. Board ed penalized be Regents, would in effect those freedoms of 629 govern- This would allow the and inhibited. "produce could not a result which [it] ment to quarter-century, a at least For Randall, directly.” Speiser v. command though person has even clear that has made 1332, 1342, 513, 526, governmental benefit "right" to a valuable with constitu- 1473. Such interference deny may government though the and even impermissible. rights is tional reasons, number him the benefit at 2697. U.S. at upon which some reasons there are deny may rely. It government Independent E.g., School Dis v. Roma Guerra infringes person a basis to a benefit (S.D.Tex.1977), trict, and cases F.Supp. espe- constitutionally protected his interests — at 819. collected therein speech. For cially, in freedom his interest deny a benefit government could if the discharge.” Stapp v. Court —this time his majority cant basis for 6-3 fur- —cast Board, Avoyelles Parish School 545 F.2d on its Elrod rule and narrowed light ther Cir.1977). “policymaking” exception to it. perhaps justi- courts were But if lower In the rejecting course of a contention exception taking foregoing fied Elrod prohibits dismissals result- salt, grain rule with another Elrod’s employee’s refusal to submit nature stated practical of a more to a demand to change affilia- opinion: policymaking plurality that for tion, appeared Justice Stevens to narrow language employed employees. The here Elrod significantly. rule The first and plain seriously: that it is to taken makes important articulations, more of these advanced in A second interest today’s purposes, injection is the two political loyalty patronage is the need points into the Court’s statement of the end that employees, not to the effec- Elrod rule adjective “private” insured, efficiency tiveness and but to modifying “political beliefs” 445 U.S. at representative government the end that 515, 517, 1293, 100 S.Ct. at 1294. Since by obstructing not be undercut tactics whether or not the beliefs of the Elrod implementation policies the of of the new plaintiffs private were public opin- administration, policies presumably sanc- say, only ion does not we can read this by justifica- tioned the electorate. The restatement of the rule there laid down as force, tion is not without but is neverthe- significant upon limitation it.9 inadequate patronage less to validate In the Elrod rule articulating addition to Limiting patronage wholesale. dismiss- form, the Branti court re- in a narrower policymaking positions als to is sufficient significant stated and excep- narrowed the governmental to this Non- achieve end. the Elrod tion to policymaking usually plurality: made individuals have responsibility limited and are there- equally party It is clear that affiliation position goals fore not in a to thwart the necessarily every poli- is not relevant to in-party. cymaking position. or confidential 367, so, 96 S.Ct. at 2687. And university’s coach of a state football authority directly significant as to Court policy, team formulates no one could present purposes, for the matter rested seriously Republicans claim that make Finkel, when Branti v. until 445 U.S. Democrats, better coaches than or vice S.Ct. versa, party no matter which is in control handed down. government. of the state On the other hand, equally it is clear that the Gover-

While Elrod Republicans concerned appropriately nor State believe purged large, metropolitan from a sheriff’s that the official duties of various assist- merely po- office because of their national help affiliation, speeches, ants who him write ex- Branti v. Finkel comes litical plain press, his views to the or communi- respects in closer home some to our legislature per- cate with the present cannot be colleague, concerns. Finkel and a Tabakman, effectively persons formed unless those pub- two of nine were assistant (as purged Republicans), party lic share beliefs and com- defenders to be sum, workers, mitments. although competent place inquiry to make the ultimate “policymaker” is not whether the for Democrats the Fathers of a subur- label county. Upholding particular position; ban an in- “confidential” fits a New York rather, the junction against is whether the hir- proposed purge, narrowing they possible spon- 9. The son that second articulation were not affiliated with or ambiguous quotation, mere Party.'" use in a from a sored the Democratic 445 U.S. at Elrod, pleadings Elrod, statement of the in of the term quoting 427 U.S. at "solely”: prevail type "To action it was something 96 S.Ct. at 2678. Would less be sufficient, holds, respondents to as Elrod “sufficient”? prove they discharged 'solely the rea- ing authority merely can demonstrate over transfer because not — operation appropriate is an re- pertained govern- to affiliation quirement perform- ment office—matters of concern. effective ance involved. however, One, upon did touch such a con- office inquired cern: whether as- 518, 100 (emphasis at 1295 attorney pressured sistant district felt added). support office-approved politi- candidates in Supreme Such was the state direct did, campaigns.10 cal Since it the Court authority at the time of the trial Court balance, turned observ- and at or about that of the court’s decision today’s critical terms case— —in panel opinion today’s case. Around in justifying “that the state’s burden latter, however, Supreme time of the depending particular discharge varies handed down its most recent employee’s expression.” the nature treating public employment and the 1691-92, Amendment, Myers, Connick First L.Ed.2d at Faithfulness to our task demands a care- analysis expressions ful of the Court’s Myers, prosecu- Sheila an assistant state Connick. by strongly These commence Parish, substantial Orleans Loui- tor office, emphasizing government’s legitimate siana, internal objected trans- maintaining discipline proper interest prepared office and and cir- fer within the service, colleagues “question- end that its duties among her culated impliedly discharged efficiency of in- may naire” critical office transfer be —, operation. 1691, of its policy aspects tegrity. and other 461 U.S. at 103 at result, discharged As a she was forthwith. Among 75 at 722. the factors next Myers’ questionnaire that con- Finding Ms. up by taken the Court’s discussion are protected speech on matter of (1) stituted employee’s expres- Whether the these: concern, gave judg- public the trial court impeded ability his sions under examination (E.D.La. her, F.Supp. 507 752 ment for noticing, signif- as a perform duties — (5th 1981), affirmed. 654 719 and we analysis, icant factor that overall White, Cir.1981). opinion In an Justice working expressions on his effect of those Supreme Court reversed. (2) superiors; with his the de- gree employee’s expressions to which the primarily The on the focuses public involved matters of concern and decision, Pickering that one Court’s time, concern; (3) gravity place of that case-by-case balancing of the requires a expressions; (4) manner of the citizen, employee, as public interest of the voicing expres- employee’s motives public con- commenting matters Making at issue and their context. sions state, cern, as his em- against independent on judgment an constitutional efficiency in promoting employee ployer, Connick,11 facts of the Court conclud- Pickering v. Board Ed- service. Myers’ ques- ed that Ms. distribution of ucation, ability impede her to do tionnaire did not Myers’ (1968). Examining Ms. L.Ed.2d 811 work, working disrupt rela- that it did appendix in an to the out questionnaire, set time, tionships, place and manner that the that most of opinion, the concluded office, during partly relating of distribution —at to internal office mat- inquiries its such to interfere with dispute hours —were as of her work ters were mere extensions — 10, U.S. at cited Branti and Elrod n. n. The Court here 11. proposition coercion belief vio- n. 10 and authorities collect- that official there, rights and other authorities Iates fundamental ed governmental service should effect that to the depend performance than on rather Connick, See service. 75 L.Ed.2d at operations, and that the act purposes threatened Mr. ment but abstract —all authority to run his Connick’s office. Fur- They views. campaign, they did not did observing Myers’ question- ther Ms. speak: they merely even thought. No naire touched matters concern countervailing appear; they considerations implicated in most limited sense and discharge suffered pure political be- correspondingly Amendment to a lim- First liefs, explains a circumstance that the com- degree, the Court ited concluded her parative “weighing” absence of terminolo- permissible. Finally, reit- gy opinions.13 in these Pickering’s erated caveat Toward other extreme fall such situa variety “Because of the enormous of fact presented tions as were our decisions in which critical statements situations Thomas, Ferguson (5th 430 F.2d 852 employees may thought be ... Cir.1970), and Duke v. North Texas State grounds superiors their ... to furnish University, Cir.1972), 469 F.2d 829 dismissal, we do not deem it either denied, cert. appropriate lay down a feasible (1973), where instructors had general against all standard such incited student disturbances were suf judged.” statements ficiently serious to call in the abili U.S., at—-—, S.Ct., ty of the academic authorities to maintain L.Ed.2d, at 724-5. campus. Writing order on' in Ferguson, (now Balancing Test Judge Judge) Clark Chief observed: Supreme Surveying the Court au proof Here before the district court discussed, thority which we have con Ferguson showed that Dr. exercised his applied by clude that to be the standard us rights and association such resolving public employee such dis seriously impair, extent as to if not to charge or nonrenewal cases is the destroy, his effectiveness as an instruc- balancing test. Each case must organized tor in an program of academic facts, particular sifting be considered on its tutoring. This was his choice to make. through such factors and circumstances as college right had control his the Connick Court outlined in order to speech or to curtail his freedom of associ- proper strike the balance between the em ation, right did they have a to termi- ployee’s speech rights and associational as his employment nate a in- as classroom right employer citizen and the state’s as an point structor at the where the exercise loyal and efficient service. Such cases of his privileges clearly constitutional expected might reasonably to locate over-balanced his usefulness an in- as spectrum; a themselves on we conclude structor. they that do. 430 F.2d at 859. Branti, think, lie at Elrod and we Connick, The facts of locate Ms. which side, employee’s extreme of the where lit- Myers’ situation centrally more on the tle, weighing any, if is called for. There spectrum, ap- called forth a reiteration were, and appears, loyal employees who both plication by Pickering the Court discharged on the sole effective12 were balance; ground private employ- today’s of their and—for and so it is with case. Elrod, pressure upon employees 12. See U.S. at note 96 S.Ct. at "Official to work political note 18: for of the candidates not worker’s appear efficiency choice own constitutes a coercion of belief in "It does not that effec- government of elected tive were the concerns violation fundamental constitutional rights,” officials in this case....” S.Ct. at Branti, 721, citing 445 U.S. at 515— Supporting Elrod this characterization of 1293-94, Elrod. Branti is the Connick characterization of Court’s prop- standing basic these cases the rather as for osition that: rehired, not plaintiffs is as were there is no evi- plaintiffs None of the situated employees. Undisputed previous political activity were Elrod dence their findings of the trial court establish actually per- interfered with the effective plaintiffs, Deputies Spencer and two jobs, of their as there formance Contreras, did not ask be rehired Ferguson. Although that the the fact new sheriff. by a deputies were terminated “failure Adjusting The Earlier Tests 14 irrel than a “dismissal” is rehire” rather Connick, Writing with the benefit they question of whether were evant to the appropriate determine that the test for exercising for impermissibly terminated mid-spectrum ap- situation such this Branti, 445 rights, First Amendment pears to be is the balance. Con- 6,15 6, 100 note note S.Ct. at nick, however, guidepost: is a new both request deputies failure of these panel the district court and the had to find question: a more basic rehire does raise way its direction. their without they job? Put applicants Were above, new way, must a sheriff consider As noted the district court first another positions ex-employees plaintiffs who appointed proved for had determined The First not seek reinstatement? patronage do terminated rea- obligation. imposes no such Next, that, Amendment sons. court concluded purposes analysis, of First Amendment Moreover, plaintiffs Depu- three of — personal support for an individual candi- Contreras, ap- Hinojosa and ties Serna— treated the same as date should be national political into pear put to have their beliefs Finally, affiliation. the court greater employ- extent than the action to weighed plaintiffs’ interest freedom Branti). (or The trial court in Elrod ees against association of belief and Ybanez’ contested, found, is not that these and it expressed hiring loyal employ- interest actively supported re- deputies three reasoning in Applying ees. Branti predecessor, campaign of Ybanez’ election “policymak- redefined the Ramirez, Elrod bumper by displaying Sheriff exception in ing/confidential” terms of ef- attending lo- on their vehicles and stickers performance, trial court rea- appar- McBee fective political rallies. Plaintiff cal loyalty ently part in the election but was that Ybanez’ interest took little soned effectively complaints legitimate government terminated for would constitute county if loyalty authorities.16 service interest effective particular necessary candidate was to a hand, Ferguson On the other performance job. the effective argue either. Ybanez does situation there had trial court determined that been “clearly plaintiffs' political activities showing or ac- that the beliefs po- their their usefulness” in over-balanced tivity deputies interfered with the of the indeed, argued sitions— duties; performance of their effective political activity, but for fired for their not political loyalty had not shown that Ybanez performance.17 The trial court inadequate any way dispatchers’ the in relevant to was employment decisions that “the found size of the office jobs; and that the small entirely by ... Ybanez were based made departure from our deter- did not warrant extent of perceptions as to the upon his Thomas, in 649 F.2d loy- mination Barrett employee’s prospective him____” Cir.1981), added.) (5th political loyalty (emphasis Since alty to appointees that his 17. Ybanez later conceded supra. note 2 14. See qualified plaintiffs; the than the were more 597-99, Perry, S.Ct. at 15. See "definitely appointees trial court found Ybanez’ (expectations continued 2697-98 qualified.” less inquiry). to Amendment irrelevant First supported apparently Spencer 16. Plaintiff protests to extent. McBee's some required perform- the effective nick does overrule our three-step anal- employees the in a

ance of duties sher- ysis public employee First Amendment iffs Id. at 1200-01. office. McCall, cases laid out in Tanner v. F.2d Cir.1980) applied by Reversing, panel the held that the small — panel the trial court and the here —it does distinguish the size of office did this case mandate more expansive particularis- from Barrett: that because of the small approach tic applied than that to below the plaintiffs’ positions the staff the size of question: first Assuming plain- Tanner ‘policymaking, within the confiden- “f[e]ll true, rule,” allegations tiffs’ to exception tial’ to is the Elrod/Branti the defend- impermissible 703 F.2d at 842.18 ant’s conduct an infringe- ment of First Amendment freedoms? We categorical approaches findWe turn to the now of what factors panel problematic court and the district weighed today’s should be in case. in view Connick’s direction tailor the analysis particular to the facts of each affording rejects case. Connick an em- Applied Pickering

ployee complete speech freedom or none Pickering progeny While and its do position depending at all either on his factors, not prescribe a fixed set of Gonza single recently other factor. As we lez, 147,19 712 F.2d at provide cases do Benavides, stated Gonzalez guidelines examples.20 (5th Cir.1983), is an “effort Connick inquiry response” avoid followed employ- exempli- formulaic Connick ee balancing First Amendment cases. “First fies the sort of appropriate Amend- presented by speaking hand, ment issues employ- On remand. the one the court should ees are not answerable mechanical for- degree par- consider to what deputies’ mulae; engage courts a weighing must ticipation in the campaign election or Ms. exercise, giving ‘full consideration of the “public McBee’s actions involve concerns.” government’s interest in the effective and other, On the the court should consider responsibilities efficient fulfillment of its working relationships whether “close ” public.’ 712 F.2d at quoting fulfilling deputies'] public essential [the Connick, —, 103 S.Ct. at responsibilities,” Connick, 1692, 75 L.Ed.2d at 722. 75 L.Ed.2d at 723. We caution working “closeness” of a Connick, it, following and Gonzalez read job performance as it affects require comprehensive gauged merely by not to be the size of the analysis weighs flexible balance which —a employees. office or particular the number of Rath- aspects government’s of the er, plain- particular “public it is a function of interest effective service and the responsibility” being tiffs’ interest in freedom of carried out. “Close arise in each working may fact situation. relationships” While Con- be less rele- panel against government's automatically 18. determinations were interest in effective (1) grant intimacy vacated our of en banc consideration. service in that case: working (2) relationship; falsity In order that the act with district truth statements; applying opinion, (3) completely employ- free hand the effect on the findings group; (4) person- also. vacate its ee's work the abstract or Gonzalez, al nature statements. See Connick, F.2d at 146. Guided we remanded involved dismissal of execu- Gonzalez expand analysis court agency trial to its to community tive director of action potential governmental include other denying county interests publicly the that commissioner's particular by among raised authority job facts supervisory court had over the Gonzalez balance, weighed Pickering those in the id. at performance of his subordinate and himself. In 147-150. concluding firing impermissibly that the contra- Amendment, judge con- vened the First the trial Court, specific suggest, 20. We did the that sidered each of the factors do not nor four balancing weighed Pickering factors enumerated in to be meant employee's speech all and association exclusive of others. freedom five-man, blackguarded individual who has one’s hon- to the effectiveness vant up than esty ability county. Motor Vehicle Bureau and and down the one-room po- of a 50-officer are to the effectiveness particularized inquiry To conduct example. precinct, Should lice Connick by in this case re- mandated will working relationships” find “close quire evaluation the record with these “essential,” then wheth- it must determine may require and considerations mind particular speech sufficiently dis- er the development of further the facts. This is working relationship pre- as to rupted the task better suited to the district court than requiring a performance, vent effective by According- us en to consideration banc. disruption as the em- stronger showing of ly, judgment we vacate the of that court “pub- closer to core ployees’ speech moves proceed- remand the cause for further Id. concerns.” lic ings opinion. in accordance with this disrup- to the determination of Relevant VACATED AND REMANDED. time, place is the and manner tive effect court, Connick activity. The RUBIN, Judge, B. ALVIN Circuit employee in example, noted whom RANDALL and PATRICK E. HIG- space, and work case used work time GINBOTHAM, Judges, join, Circuit dis- employee speech that did commenting that senting: “might conclu- so lead to a different not do association, belief, activity Political —, 13, 103 S.Ct. at n. sion.” 461 at protected are at the core of the activities 724, 1693, 13, 75 n. 13. n. L.Ed.2d at A by the first amendment.1 official Finally, wheth- the court should consider greater right public employ- has no tell a context, activity er, particular taken in or how to ee what candidate hostile, sufficiently be considered could tell than he has to what vote disrupt sig- as to abusive or insubordinate he may attend or what books church operation nificantly the continued may may punish Neither officialdom read. office. 461 U.S. at S.Ct. at him employee by failing rehire be- an connection, L.Ed.2d at 724. books, wrong read the attended cause he analysis that the district court’s the extent church, wrong wrong supported suggests a matter of law will as “If star in our there fixed politician. in- be relevant to First Amendment never constellation, it is that constitutional quiry involved consti- whether the prescribe official, high petty, can what personal distinguished tutes as nationalism, politics, shall be orthodox political support, it stands corrected opinion or religion, or other matters of Gonzalez, and Gonzalez. Connick Cf. act citizens to confess word or force (even where no intimate work- therein.”2 their faith exists, appointed an senior spoils system, which views authority public disavowal official’s in- pure patronage, as disrup- superiors constitute such of his functioning free of the electoral hibits the outweigh First Amendment tion “Conditioning public employment process. speech). the charac- right in Nor need support of partisan support prevents expressions ignored: the Con- ter holding By competing political interest.”3 nature; repealed human has not stitution job employee’s hostage polit- to his thing to work with a subordi- it is one affiliation, the rebirth of prefer- ical activities or expressed a reasoned who has nate majori- spoils system sanctioned superior quite another for another ence a victorious chal- organization ty allows an incumbent or forced on one’s to have Elrod, Burns, Burns, 96 S.Ct. 3. Elrod v. (1976). (1976). Barnette, 319 U.S. 2. Board Education L.Ed. so,

lenger accomplish indirectly disregards what nei- it mandate Fed.R. legally by 52(a), ther could do mandate: the coer- Civ.P. as reinforced Pullman- Swint,6 political cion of from the Standard appel- Even when an employee. late application court remands for of a new law, given option rule of it is not protects amendment The first disregarding the district court’s fact-find- employee expresses he and when acts on ings by simply saying, it “rub all out and political supports no less he beliefs when start over.” losing than candidate when adheres to a party. losing political Its armor In Hogg County, does not Jim par- the Democratic guard only ty “abstract views” held landscape. Party dominates pectore expressed by simple nomination, therefore, or party in victory ensures protects entire range general affiliation: election. op- Gilbert Ybanez posed expression Sheriff, free of beliefs actions so the incumbent Juan Ra- long they adversely mirez, do not affect the Democratic nomina- perform employee’s ability job platform tion. Ybanez ran on prom- violating efficiently. Without ised change first the voters a in administration. amendment, agencies the state its may The campaign spirited. was Each candi- hire, discharge, refuse to fail to sponsored parades rallies, rehire date locally any no reason or for “pachangas.” rea called Three of the field son at all one: it deputy save retaliate for employed sheriffs who had been rights the employee’s exercise of his campaigned of Ramirez actively his behalf. expression. free Public dispatchers, does One of Stephanie Spencer, jobholder demote second-rate supported also Ramirez. There is no inti- status majori under Constitution. The mation in the record that of these ty opinion tears holes these established employees personally attacked Ybanez protections by finding qualifications of did anything unseemly the slightest. them in Myers,4 Supreme Connick v. MeBee, dispatcher, The other Jimmie who opinion that dealt awith different secretary, was also Ramirez’s apparently problem but, applies, insofar as it here part took no in the campaign. Ybanez won fully each principles just endorsed primary elected, Democratic I, therefore, respectfully stated. dissent. opposition, without general election. candidly

“Ybanez testified that it was the existing Hogg County custom Jim for a I. new sheriff to fire all staff of his legislators Because are neither nor predecessor bring peo- ... in ‘his own constitution-writers, appellate judges, ple.’”7 Ramirez’s term ended December start, must, let us as all cases with the days then, 31. A few before Ybanez tele- panel opinion facts. was vacated phoned Ramirez and told Ramirez that he our order to rehear the en ease banc.5 The was to his employees inform they majority expressly opinion declines to rein- longer employed by to be panel opinion. Nothing state the in the sheriff’s office unless Ybanez communicat- majority opinion states that the district ed with them. factfindings clearly erroneous, indeed, us, nor on the record before could The sheriff’s employed office six deputy sheriffs, majority dispatchers, be found error. Yet the four and three findings. doing (who vacates apparently janitorial those custodians did 4. 461 (1983). quote findings.

5. Local Rule 41.3. I district court’s work).8 loyalty politi- deputy, port one of and to an individual Ybanez rehired one distinguished political par- as dispatcher, and the three custodians. cian deputies answered, “Yes,” ty”? Three of the and two of the dis- It and so do I. To correct, patchers why were not rehired contend that who understand that answer Supreme to rehire them was in re- Ybanez’s failure must turn to the Court cases. their first for their exercise of taliation II. rights. amendment had After the nation for almost two cen deputy all Ramirez testified that accepted patronage po political turies dispatchers competent were sheriffs and right reality, Supreme litical satisfactorily per- employees who were spoils first assessed forming jobs. Ybanez never asked their in Elrod system and the first amendment job per- for an evaluation of the Ramirez (Justices v. Burns.9 The plurality Bren According to any them. formances of nan, White, Marshall) there stated the court, that he the district Ybanez testified question before the court: “any persons to believe that had no reason public employees allege Whether who employed he took were he office] [after they discharged or were threatened they re- qualified people than the more discharge solely because of their who placed.” deputy Three of the sheriffs political partisan affiliation nonaffilia- replaced were Certified Peace Offi- were deprivation tion state a claim for of con- possibly three of At least two and cers. by rights secured stitutional First were not deputies the new hired Ybanez and Fourteenth Amendments. certified. 427 U.S. at 96 S.Ct. at 49 L.Ed.2d The district court found Ybanez did not at 551. concern mere “entirely employment based his decisions loyalties, “abstract” that case perceptions his as to the extent of only “required employees were not loy- prospective employees’ pledge allegiance their to the Dem- candidacy.” him made alty to and his “He Party,” required ocratic but were also ‘his statements to the effect that wanted to “work for the election other candi- ‘politics poli- people’ office and that ” Party, of the Democratic contribute a dates appointees “He conceded his tics.’ wages Party, portion of their qualified predeces- than their were more that, sponsorship of a member obtain the evidence confirms sors indeed usually price Party, of one of the deputies, they at least as to the field first three alternatives.” qualified.” definitely less failure “[T]he at 555. plaintiffs employment of the continue the part intent on the was motivated majority opinion echoes the Court’s to remove them in order to make Ybanez says Elrod opinion in when it plurality supporters.” for his own room prohibition of First “the on encroachment for not re- While Ybanez offered reasons protections is not an Amendment abso- deputies, the hiring the district three fired inquiry, That but lute.” starts our “pretextual after- found them it. Restraints on first amend- does not end justify political de- thoughts, offered to rights permitted appropriate ment are cisions.” reasons. The is what restraints permissible beliefs and when. Even making findings, the district After these may made and associations a condition before it: “does court stated issue they are demon- if em- Elrod —Branti apply rationale when strably requirements sup- relevant to upon the ployment decisions are based Burns, eight deputies 10. Elrod included Ramirez’s staff had jobs were eliminated L.Ed.2d at 558. two of these economy County reasons." Commission "for 9. 427 question.11 Quoting Perry

job Employees charge Republicans. in dis- be hired, charged, pub- said, not or not continued in v. Sindermann14 Court “[the cause, or, indeed, good for employment lic government] deny may not a a benefit to long at all so as their no reason exer- person infringes on a that basis his consti- not rights is cise of first amendment protected tutionally especially, interests — 15 patronage hiring reason. Even and dis- speech.” his in interest freedom of The permissible persons in con- missals held, “it Court then is manifest that contin- policymaking positions.12 fidential or employment public ued of an assistant de- be properly fender cannot on conditioned Elrod’s expressed in While all the views allegiance political his party in con- gain majority sup- did plurality not 16 county government.” trol of I submit holding port, that there is no doubt of equally apparent that it is case, here, that continued directly is applicable Stewart, deputy of sheriffs dis- did. Justice whom Justice concurred, patchers be succinctly: properly Blackmun cannot stated it conditioned allegiance newly their to a elected sheriff. single substantive involved I cannot follow a distinction between ab- nonpolicymak- in a this case whether party allegiance stract belief and on the ing, government employ- nonconfidential one hand discharged ee candidate on the can be threatened with other, opinion, in my job from a that he is satisfac- first amend- performing protects ment torily upon ground the sole both. political of I agree his beliefs. with the majority’s interpretation of the use plurality he that cannot. in Branti stands that “private” word

Id., 375, 2690, 427 U.S. at 96 S.Ct. at 49 opinion’s reasoning on its head. Branti at L.Ed.2d 566. purport did even to narrow Elrod’s not later, years five af Almost Court only reach to embrace those beliefs holding Branti Finkel.13 firmed this in Indeed, kept in the closet. stands for the That case involved a defender who contrary proposition for the Court was re- the employment threatened to terminate sponding argument to the defendant's that public defenders, six out nine assistant Elrod was limited “to in which situations serving pleasure, they at his because were government employees are coerced into Republicans. According court, to the trial pledging allegiance party a that “the that evidence rea show[ed] they voluntarily would not support and sought son for which [the defender] apply simple requirement does not to a plaintiffs to terminate as assistants was sponsored spon recommended or power____” reject- 100 S.Ct. at 1292. pursuant procedures sored to the that had argument, Branti Court did been decided the Democratic cau extended Elrod but prohibit limit 508, 510, 5, cus.” 445 U.S. n. 100 S.Ct. “of public employee solely dismissal a be- 1287, 5, 574, 1290 63 n. L.Ed.2d 579 n. 5. Id. private political cause of his beliefs.” otherwise, said, joined Six members at 1294. To rule Jus- the Court opinion enjoining tice Stevens’ the dis- the principles would “emasculate set forth Pierce, 468, 593, 2694, 11. 14. 408 Cal.App.2d 257 64 Cal. Hollon U.S. 92 S.Ct. 33 L.Ed.2d 570 (3d Dist.1967) (1972). Rptr. (sustaining discharge 808 plied religious be school bus driver who ritually young Id., lief should be sacri children 15. ficed). L.Ed.2d at 582. Burns, at at Elrod v. 427 U.S. 16. S.Ct. L.Ed.2d joined at 584. Justice Stewart in this view. He thought lawyers dissented because 13. 445 U.S. employ- defender’s office are confidential (1980). ees. Permitting dismissal for this tutes coercion belief violation of in Elrod.” perhaps eliminate the more rights. “would constitutional reason fundamental El- Finkel, of coercion described 507, 515-516, forms Branti v. blatant rod,” “it would not eliminate the coer- 1287, 1293, necessarily flows cion of belief Burns, Elrod v. (1980); sponsor one must have knowledge that 2673, 49 L.Ed.2d 547 one’s party in order retain the dominant —, 103 at S.Ct. U.S. at 75 461 omitted). (footnote Id. at 1293-94 job.” at L.Ed.2d 721-22. Court continued: not one Connick v. Myers17 does take that issue of apparent believe it fact, from Elrod or Branti. In whit attorneys whether district assistant earlier opinion both of those Connick cites political pressured to work in cam- protections they squarely for the opinions paigns matter is a interest to the of recognized.18 It does not even deal community upon which it is essential as to by this case save presented the issues public employees speak be able to McBee, dispatcher non-retention the. whose freely retaliatory out without fear of of justified on the basis sought to be was dismissal. information. betrayal her of confidential added). Id. (emphasis not patronage The issue Connick was whether, First conclusion, all “the at but reaching dismissals In the Court prevent Fourteenth Amendments length discussed at the evolution of its employee state for circulat- concerning what is a of doctrine matter concerning of- questionnaire internal ing a public protection concern and 19 Connick, the district attor- fice affairs.” public employees engage right of in full assistant, Myers, for re- ney, had fired an matters; not revi- it did expression on such fusing accept a transfer and for insubor- discharges or sit the issue of refusals questionnaire to distributing a dination supporting losing rehire said that employees. other The Court guess do not need to at its candidate. We not questionnaire distribution holding, it: the Court stated protec- “wholly Amendment without First only public employ- that when a We hold tion,” “much in the it found force” as a citizen matters speaks ee Myers’ attorney’s view that commu- district concern, public but instead as an a matter of nication did not relate to person- employee upon matters concern.20 interest, the most unusual cir- al absent ques- Only question in the assistant’s one cumstances, a federal court is not the upon a matter of tionnaire touched appropriate forum which to review of that The Court’s discussion concern. personnel decision taken wisdom of here: particular significance question is of allegedly in public agency reaction Question inquires 11 if assistant district employee’s behavior. work pressured “ever feel attorneys —, 103 at S.Ct. at 75 office campaigns behalf of political on added.) (Emphasis at L.Ed.2d 720. We recent- supported candidates.” have Connick concluded pressure upon em- official ly noted.that first Myers’ discharge did not violate the political candidates ployees to work for was retalia- consti- amendment because worker’s choice not of the own 1684, 1687, 75 L.Ed.2d 708. The second 461 75 L.Ed.2d 708 U.S. 17. text, post. quoted in the citation first cites Branti 18. The Connick —, Connick, at U.S. 19. years, general proposition that least "[f]or 75 L.Ed.2d at 715. condition settled that a state cannot it has been infringes the public employee’s a basis —, Id., 461 S.Ct. at U.S. constitutionally protected interest expression.” freedom protected or other tion for her that relationship. first The distinction the ma- activities, amendment and because the dis- jority opinion to acknowledge fails is that attorney “reasonably trict believed Branti, [that case, Elrod and like this involved office, disrupt would under- actions] retaliation for beliefs and associa- authority, and destroy mine his close work- expression tions —free that did not threaten ing relationships.” efficient conduct office unless employees’ position required political traces its roots to Pickering Connick Education, loyalty. like Pickering, Connick Board and simi- (1968).22 cases, lar Picker- involved ]iice-Connick ing, arguably a school board dismissed a integrity teacher threatened the of em- published, in a local newspaper, relations, who had ployer-employee and therefore letter critical handling of the board’s each required case the interests to be bal- past proposals new to raise revenue for the anced anew.24 system subsequent school and its allocation system’s of funds between the athletic and III. programs. academic The Court determined The district has found that Ybanez that it the must balance state’s in interest did not fail any to rehire deputy of the “promoting efficiency public the of the ser- Spencer, dispatcher, sheriffs or any performs through employees” vices its justifiable of the reasons held in Connick. against of employees, the interests those Moreover, Ybanez not merely did react citizens, “commenting upon in matters of the former employees’ political “abstract Subsequent cases, concern.” there- Instead, views.” politicians like the in both fore, applied Pickering have and Connick Branti, sought Elrod and solely put involving to situations dismissals of an em- people” “own into the sheriff’s office.

ployee speech whose criticized his or her replaced persons The were neither insubor- employer.23 dinate nor incompetent, they merely failed involve, Both Pickering and Elrod as the candidacy. Ybanez’s The fail- observes, majority “public employment and ure to squarely Elrod; rehire them violates the First Amendment.” Both considered it does not entail the factors considered in government circumstances in which a Pickering. employer might permissibly discharge a Once the district court found that employee the employee’s expres- sole reason for Ybanez’s failure to rehire sive or associational activities. It is not employees therefore, was his desire to surprising, staff the that both cases ex- people,” office with his “own amined similar issue considerations to determine was employer’s political when the whether outweighed interest affiliation was “es- employee: that of the sential to of the employeefs’] be- governmental tween the and the employer responsibilities.” Branti v. Finkel, the effect the or association had on 445 U.S. at 100 S.Ct. at —, Id., at 75 Columbus, City Leonard v. 705 F.2d 1299 of (11th Cir.1983). L.Ed.2d at 724. —, id., Thomas, (5th 22. See 24. Barrett v. 649 F.2d 1193 Cir. 1981), denied, L.Ed.2d at 715. cert. (1982), 72 L.Ed.2d 440 illustrates well this dis See, (7th challenge tinction e.g., Egger Phillips, per because it involved a v. F.2d 292 — abusive, Cir.) (en banc), denied, regulations prohibiting sonnel insult cert. ing, language (1983); supervi or indecent directed to a v. Gonzalez officer, Benavides, (5th sory alleged patronage Cir.1983); as well as 712 F.2d 142 demo Rookard tion and Hospitals Corp., (2d v. transfer. The court cited Health and in 710 F.2d 41 Cir.1983); upholding regulation permissible regu as a McGee v. So. Pemiscot School District R-V, (8th Cir.1983); speech, analysis lation of Hughes but based its F.2d 339 of the Whitmer, (8th Cir.1983); patronage squarely 714 F.2d retaliation claims McKin on Elrod ley City Eloy, Cir.1983); and Branti. 649 F.2d 1200-02. of vary County. ma- Its standards do not with the agree at 584.25 I with the governmental the supposed of units or size of a office alone size jority that the many perceptions first of local voters. coun- determine the standard of cannot ties, system two-party there is no real protection. We said in Barrett amendment prevailing par- employing office local election contests. an v. Thomas26 workers, typical ty Republican, “the is either as is deputies and 150 other mid-west, Democratic, many parts political between sher- cohesion absence south.” hardly said under- as it is most of the “solid deputy iff and can working relationship.” competing represent candidates factions an intimate mine validity pay fealty nominal to the same But does conclude the least Id. proposition: party. Voting a small is determined factional inverse necessarily political fealty party rather than demands adherence office compete effectively. personalities Sheriff Ybanez of those who to function guarantee did.27 The dis- nomination that never asserted that it even victory. that “there was Had the activities of the trict court concluded plaintiffs at- that the beliefs constituted ad hominem evidence whatever Ybanez, history any against voting tack the discussion con- or associations any way impaired penultimate paragraph their Plaintiffs tained efficiency majority job. As to the would have some rele- fairness or arise, dispatchers, the Defendant made no show- vance.29 The connection would how- ever, why political the distinction loyalty kind between two-party county, but necessary proper performance of their one-versus a because destroyed employees’ speech had the the duties.”28 employer-employ- possibility of an effective fact majority The draws attention to the relationship. ee support of an indi- that this case involves hangs part Finally, majority of its opposed as to affili- the Democrat vidual peg on slender that some of I its to decision ation. do not understand plaintiffs not ask Ybanez to reem- is dilut- did intimate that the first amendment meaningless ploy them. do not exact public employees to who We applied ed when have been fu- gestures. Application The would happen one-party county. in a to work handwriting The on wall for applies to and to tile. was alike Illinois Constitution discharged had em- Texas, Hogg to all to see: Ramirez all County and Jim to Cook Atlas, 18,760 1183, See, McCall, Rand-McNally was on e.g., 625 to Tanner v. F.2d 25. 1, denied, Stegmaier (5th Cir.1980), April drew from Elrod a U.S. 1980. cert. 451 1189-90 1975, 907, employees (1981); and 68 295 Bar distinction between L.Ed.2d confidential 1193, Thomas, deputies dispatchers policy-makers. and 1200-02 v. 649 F.2d rett 925, denied, Cir.1981), appear to more U.S. involved be no confidential cert. 456 here Jones, (1982); employees policy-makers. Wren v. 635 Fi- 72 440 than denied, (7th Cir.1980), exception nally, availability cert. 454 on to base the 1286 (1981); county exception S.Ct. allow the 102 the size would (S.D.W. F.Supp. Galloway, sixty percent Douglas engulf v. rule. Almost counties, Va.1983). ninety-six percent of the munici- and palities townships in the United States have twenty-five population thousand. a of less than at 1201. 26. 649 F.2d Census, Commerce, Dep’t. of Bureau of the Abstract of the United States issue, 1982-83 Statistical the burden was Had this been 27. ed.) Note, (103d Nonpartisan Speech at 295. prove it defense as an affirmative the sheriff to Cf. Department: Trammell, in the Police Stegmaier question of fact. and a Aftermath of Pickering, Hastings Con.L.Q. 1002 n. (5th Cir.1979). 1034 n. 4 597 F.2d constituted, (noting force that the work employed popula- in tion; 16.5% of nation’s involving a court considered case 28. When our large speech of such a restrictions on single Deputy Circuit Clerk percentage a con- be matter serious should Alabama, County, not even did of Cherokee cern). apply force. should not with full hint Elrod Trammell, (5th Cir. Stegmaier F.2d 1027 supra 1979). County's population, See note accord- Cherokee Connick, practice ployees, step, the established was to The first under tois de- jobs give people. to the new sheriffs Dis- termine speech whether McBee’s involves Deputy patcher Spencer and Contreras are “public matters of Connick concern.” ex- the two who did not ask Ybanez for contin- pressly held that “the issue of whether testified, employment. ued Contreras how- attorneys pressured assistant district are ever, “approached me and he Ybanez political campaigns to work in is a matter sorry, politics stated that he was but was community upon interest to the him, politics, but I could wait that at a public employees essential that be able might but thing up, date some come later speak freely retaliatory out without fear of under him.” application if not Even made —, U.S. at at dismissal.” difference, deputies the failure of some 721. Patronage 75 L.Ed.2d dismiss- apply surely justify would Ybanez’s deputies dispatchers als of less reemploy failure to those who did affirma- matters of concern. tively seek to continued. The balance next —Connick requires weigh government’s us to in IV. terest in the effective efficient fulfill dispatcher McBee had chief been both ment responsibilities public. of its to the secretary to Ramirez. Ybanez did of- Connick, employment, to continue fer her 721-22. is no dispatcher There pay. reduced as and at He proposed give suggest evidence in the record to her secretarial duties to a employee. new Ybanez also told her of county his McBee’s consultation with officials plans majority not to retain impeded of the re- dispatch ability perform her maining protested staff. McBee er’s district duties. The found complained fair and losing also discharged Ybanez McBee because job. her secretarial The next week she Connick, viewed her aas “troublemaker.” spoke County Judge to the and also to one well, and Pickering instruct con us to Commissioners, County complaining employee’s sider the effect proposed of Ybanez’s course of action and might have on her “apparently” (according to the district employer, maintaining the need for and on court) seeking their advice assistance in working a relationship. harmonious But attempting to dissuade him. Ybanez permits neither solely a because learned of her and revoked actions his of- rights. an might insist fer to McBee she “making because employee’s The whether the anticipated trouble” and he that she would speech disrupt would the conduct of the job. a trouble-maker on public office or manifest to insubordination The district court found that Ybanez’s this, superior. deciding a In the Court has separate to desire the secretarial from dis- “manner, time, place” looked at the patcher not politically functions was moti- Connick, occurred. speech which the protests vated. It also found that her to at—, S.Ct. at county officers were an exercise of “free- at 724. complaints McBee addressed her speech.” dom officials, appropriate time, on her own circumspect and in a manner.30 speech Her Pick-

Only to McBee’s situation does hardly approached the “mini-insurrection” ering-Connick analysis apply. But noth- Myers’ questionnaire was said to have ing majority opinion in the tells us how caused office. chal balancing “the her claim. Its Connick’s She did not test” affects office,31 lenge authority in application requires her reinstatement. Ybanez’s Indeed, noted, calculus, might lead to a the Connick different result.” "[e]mployee transpires entirely 103 S.Ct. at 1693 n. 13. time, employee’s and in non-work areas own Benavides, 31. See 712 F.2d 142 Gonzalez office, bring different factors into Cir.1983) (executive community director of a process, equal entitled to due ployee is personally,32 or seek attack him harass or expression. and to freedom of antipathy protection, for his adminis- to foment statutory protection by proper re- speech deserves as restrained Her Save tration.33 speech, political activity, their such as it was free strictions on only because Act, manifestly petition necessity a and the for fideli- it was the Hatch because also duties, grievance public employees enjoy ty redress of to their for the re- body partic- able to afford only governmental right speak their minds and to process. Job sacrifice ipate lief. the elective reprisal may not be exacted as IV. expression. Today’s of free deci- exercise protects only beliefs possible just abstract such retaliation. A rule sion makes meaningless. beliefs Abstract the first amendment bul- is almost It undermines They threaten of Elrod and Branti and threatens protection. little need wark heresy. Words cannot tolerate firing every public employee those who who Political beliefs unspoken win no converts. support if the in- does not the incumbent only in the mind win no elections. wins, cherished cumbent or who does the free- in this case is right at stake job may if he loses. Loss of a incumbent party or dom associate constitutionally price be made choice, as well as the politician of one’s pachan- attending failing to attend —a —or intel- of one’s to hold the beliefs freedom ga. protect does not The first amendment lect. reasons, I respectfully For these DIS- or the use of words. only freedom of belief SENT. free- part that is safeguards conduct It cannot, expression. The state with- dom TATE, Judge, concurring: Circuit reason, wearing prohibit compelling out school,34 peace display armbands in the result reached I concur flag,35 library States symbol on United However, I am unable to disa- majority. 36any prohibit than it can hold- more sit-ins expressed by Judge view gree with the expresses. that such conduct the ideas Myers, Connick Rubin’s dissent right to protects the The first amendment right expression as well as the free (1983), special rele- addressed issues of no grievances. a redress of petition for and was not to those now before us vance the Elrod-Branti modify ra- state, intended ideal continuation rights First Amendment only on effi- tionale that job should turn government if public employees are offended ability. does ciency and Constitution private discharged solely because of their permits public Erewhon. It not mandate Although I as a citizen political beliefs. dependent on other employment to be made may agree more with Justice factors, employ- judge including the whim of the Burns, Elrod v. lim- dissent imposes some Powell’s the Constitution er. But 2691-97, 376-89, em- U.S. public employer: its on the Cir.1983) (executive (11th county director of black publicly com- agency denied that action league press authority policemen’s any supervisory held conference over had missioners protest department’s job performance). staged demonstration to and his assistant’s his policemen). black treatment of (8th Whitmer, Hughes 714 F.2d 1407 v. 32. See Cir.1983) (highway patrolman cam- mounted District, 393 U.S. 34. Tinker v. Des Moines School against paign and intimidation of harassment (1969). 503, 89 S.Ct. 21 L.Ed.2d 731 superior). Washington, Spence v. 35. Eloy, McKinley City v. 33. See Cir.1983) employee, department as (police publicly organization, representative of labor Louisiana, v. 36. Brown give an annual city’s officers refusal to criticized raise); (1966) (plurality opinion). L.Ed.2d 637 Columbus, City 705 F.2d v. Leonard (1976), only in fidelity concept to the I concur therefore result of liberty under our majority. Constitution ordered court, us, an intermediate requires as controlling in- Branti as

follow Elrod and rights.

terpretations First Amendment

Nevertheless, ultimately, I be- concur I believe Elrod-Branti re-

cause do not newly-elected

quires that a sheriff (here, county a small staff six

small dispatchers) give any

deputies and four special making his consideration own & FIDELITY DEPOSIT CO. OF MARY- appointments deputies appointed new LAND, Plaintiff-Appellant, would, proposition I a former sheriff. This assume, indisputable, dep- if the former SMITH, Jr., J. Harold Defendant-Third politi- part uties no active in the had taken Party Plaintiff, Appellee-Appellant, campaign cal resulted in the new sher- iffs the former sheriff. defeat of present, necessity small office like KESSLER-BODENHEIMER, al., et there must be an intimate be- Party Defendants-Appellees. Third staff, appointed tween the sheriff and his No. 82-3655. small-county each of context— whom—in (and regarded will be of Appeals, United States Court voters) ego as the alter of the new sheriff Fifth Circuit. acts. all their official April Thus, I believe do not the reach Elrod- Rehearing May Denied prevent Branti so far as to extends new- ly-elected county of a small sheriff deputies staff,

selecting, his small

persons predeces- other than those of his

sor’s staff —whether or not the had latter

actively opposed publicly the new sher-

iff in his successful effort to defeat

former depu- sheriff to whom these former appointment

ties loyal- owed their and their otherwise,

ty. permit To hold would tobe deputy

an incumbent to assure himself of

perpetual if actively publicly tenure

supported respective sheriffs incumbent succeeding each of their cam-

paigns. I do not believe that the Elrod-

Branti rationale intended that First used as a

Amendment be sword instead of

a shield.

I am accord thus more with the ration case, panel

ale of the in this (1983), 841-42 and with the views Harber, Ramey Fourth Circuit (4th Cir.1978),

589 F.2d 755-57 cert.

denied, (1979), than I am the en

banc majority’s rationale.

Case Details

Case Name: Jimmie McBee v. Jim Hogg County, Texas and Gilbert Ybanez, Javier Alfonso Hinojosa v. Jim Hogg County, Texas

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 30, 1984

Citation: 730 F.2d 1009

Docket Number: 81-2465

Court Abbreviation: 5th Cir.