*1 hand, agree On the other I am inclined to majority supervisor’s HUGHES,
with the in- Appellee, William E. Moore was not coercive and terrogation of 8(a)(1). thus Here the violative Section WHITMER, Appellant. Alan S. simple. The relatively supervi- facts are Nos. 82-1338 and 82-1538. question, sor’s statement although not, view, questionable, my do cross the Appeals, United Court of States interrogation. line into coercive Eighth Circuit. Ms. Similarly, Westphal’s refusal do Oct. 1982. Submitted production may work have been a protected Aug. Decided 1983. protest against firing the unlawful of the probationary employees. three But her ac- Banc Rehearing Rehearing En tion, even its if motivation related to Sept. Denied firing probationers, of the three had the effect of a strike and rea- sympathy may
sonably accordingly.4 be viewed Although certainly
the Board’s conclusion here is not
irrational, I think it is to make necessary
distinctions that are too fine to be workable firing Westphal find that of Ms. 8(a)(3) (1).
violated Section
Nonetheless, clearly as to the termination probationary the three I employees, majority simply reshaped
think the the inferences
evidence and to accommo- must,
date its I there- predilections. own
fore, respectfully dissent. Cir.1981), proof in which we had followed in NLRB 1st on “but-for” causation and burdens of Ford, (7th Cir.1982). Webb practice may F.2d that this unfair labor cases. It be Webb Ford held that the General focus, had Counsel and em- borrowed from constitutional showing not the burden that a forbid- cases, ployment discrimination is misdirected discharge den motivation contributed to the but context. See Jackson & in the labor relations also, legitimate discharge if motives are Heller, Line De- Wright The Irrelevance of argued, discharge that the would not have tak- Returning bate: to the Realism of Erie Resistor place independently protected en of the con- Cases, 77 Nw.U.L.Rev. in Unfair Labor Practice employee. Transportation Manage- duct of the (1983). requires Appeals accept ment the Courts of
the Board’s allocation of the burden on the however, note, Westphal that Ms. I —unlike analysis, i.e., phase of the second the. production probationary workers —was employer’s burden to show as an affirmative no-strike clause. Tech- bound a contractual defense, can, employee if it that the would have therefore, may nically, sympathy strike her irrespective protected con- been fired protected strike even been a economic have certainly duct. G & H has not carried that though others in concert with a strike it was burden in the case before us. illegal. which was found to be Further, questions I think there are serious about the Board’s and the courts’ recent focus *4 Ashcroft, Gen., Dean,
John Atty. Preston Gen., Atty. Mo., Asst. City, Jefferson for appellant. Bartlett, Bartlett,
Alex Roger Toppins, K. Pletz, P.C., Mo., Venters & Jefferson City, Garrett, R. Jack R. David Ray, Law Offices Garrett, Plains, Mo., of R. Jack West appellee. McMILLIAN,
Before Judge, Circuit GIBSON, FLOYD Judge, R. Senior Circuit GIBSON, and R. Judge. JOHN Circuit GIBSON, FLOYD R. Circuit Senior Judge. Superintendent High- Missouri
way (Superintendent)1 Patrol appeals from a final judgment entered in the District Court for the Western District of Missouri permanently enjoining High- Missouri (Patrol) way transferring ap- Patrol from pellee Trooper Hughes William E. without providing first him with a due process reversal, name-clearing hearing. For Superintendent argues Trooper troop transfer from a rural to an troop urban did not violate four- rights teenth amendment Hughes because has no property liberty or interest in a During leading opinion, the relevant events to this trict court issued its Howard Hoffman lawsuit, Superintendent Alan Whitmer was Superintendent. became the Highway of the Missouri Patrol. After dis- assignment within particular geographic upon making decision, the transfer Patrol. Although district court did McKee Captain “G” testified Troop address specifically resolve a made debilita- claim, Hughes urges appeal troop ting problem morale from resulting his rights first amendment violat- were personality dispute intense between ed the transfer was ordered to re- Hughes and Lt. Lt. Elmore Elmore. was in protected speech- taliate him for his charge staff at Troop functions “G” For related activities. dis- reasons headquarters but was not in the chain of below, cussed we reverse the court’s district Hughes. command over judgment. F.Supp. Hoffman, Major who conducted inter- I. Background Factual views Troop patrol- number of Trooper has been a Hughes member of men, major concluded source of the the Patrol almost spent since 1970 friction between Elmore was assigned all his career “G.” Troop Hughes’ investigation of Elmore’s twenty- headquartered “G” is in Willow son. four-year-old Hughes suspected that Missouri, patrol its Springs, members son was Elmore’s involved illicit drug surrounding coun- highways nine trafficking. Hughes these reported suspi- ties south central Missouri. Captain McKee, who in cions to turn told family Springs have lived in Willow to continue investigation. As during ten-year tenure in investigation, continued his he sus- “G.” pected Lt. leaking Elmore was infor- *5 afternoon, investigation mation about the 16, 1981,
On his son. Friday October Hughes Hughes apparently other Troop Troop was summoned head- told “G” arrived, quarters. When he was officers about his Hughes suspicions regarding Lt. ushered into McKee’s Captain office and made regarding Elmore accusations El- by Major headquar- told Hoffman of Patrol drug more’s in son’s involvement activities. being Troop ters that he was transferred to Springs also told a Hughes neighbor Willow “C,” at state expense, Monday, effective neighbor’s sixteen-year-old daugh- 19,1981. Troop relatively October “C” is a been ter had seen at Lt. Elmore’s house assignment encompassing urban the coun- with son. son Elmore’s Elmore’s was mar- surrounding City ties Its St. Louis. ried to another woman at the time. During headquarters Kirkwood, Missouri, are in Hoffman, their interviews with various which is miles Willow some 200 from “G” officers the view Troop expressed Springs. Hughes had become too involved personally affairs, hindering family Elmore’s Hughes for reported duty Troop “C” performance job causing own disharmo- 19, 1981, on Monday, October as ordered. ny learning within the After Troop. about Hughes any was never notified officially Hughes’ various and accusa- investigations complaint against prior Superin- him to the tions, by Lt. Elmore conduct- reciprocated tendent’s decision order the transfer. ing Hughes his own investigation Nor was Hughes given opportunity to file indicating his intention to a defamation any charges against meet of the or him against Hughes. suit character any refute of the factors which into entered Superintendent’s decision to transfer Hughes At trial testified he was Hughes him. still has not received written for the transferred retaliation Elmore reasons for his transfer. His transfer order investigation and his various other investi- merely being states that he is transferred gations. investigations One of these other at state expense Troop Troop from “G” to Airport. the Mountain View involved “C” effective October approached by three Mountain Hughes Whitmer, Superintendent suspi- View with information about the ultimate citizens Hoffman, and take- transferring authority, Major night airplane landings cious late the Superintendent airport’s whom relied a remote ultimately segment offs on prisoner that he received ticket runway. Hughes alleged fixing testified about Hughes hope incidents.2 did so in the pilot information that a had been offered abuse with the drugs in and out that his friend could intercede large money fly sum of Airport. Hughes higher headquarters of the Mountain View echelon at Patrol McKee, Super- Captain initiate some reform in “G.” passed this information Major Hoffman tes- encouraged Hughes who to conduct a sur- intendent Whitmer Later, unaware airport. rep- they completely veillance at the a state tified that were Hughes’ suspicions improprieties resentative whose was housed at the plane testified that he never Airport complained Hughes Mountain View about “G.” within the Superintendent anybody surveillance told Hoffman or else Despite Captain suspicions. Whitmer. Patrol’s command staff about his complaint, encouraged McKee to continue the Hughes Hughes also past years Over the few and, at request, of some involved in other incidents became placed a call to Jefferson for City special and to his fellow community concern to the night surveillance equipment to aid iden- a wooded patrolling officers. In while airplanes tifying making night flights. area, teachers en- Hughes discovered two Hughes testified that soon after he made assignation.” gaged “compromising in a the request equipment, for surveillance this en- Hughes, off-duty, reported while suspicious night flights Hughes ceased. school counter to the board. again requested never or the night received accus- reprimanded openly surveillance equipment. Hughes testified slashing the ing postal employee a local that he an entire spent year airport on his tires of car without sufficient evi- finding any tangible surveillance without his accusations. These support dence to evidence of impropriety. accusations were made while also testified that he had was also criticized off-duty. Hughes received Captain spending information that McKee was in- some of his fellow officers for too volved in a the Mountain View ticket-fixing patrolling incident some six much time years ago. Captain having McKee denied area so that he could associate with his Trieman, friend, ever fixed any wealthy traffic ticket. also industrialist Claud *6 testified that he writ- duty filing had received information while on and for baseless that Captain reports accusing operators McKee and Lt. Hickman were ten radio of der- officers, cover-up Finally, involved in a of a some in- prisoner duty. abuse eliction McKee, Hughes incident. report cluding Captain referred to a writ- Lt. Hickman and ten Trooper Sergeant suspected Hughes Mitchell and that furnished local indicating Zorsch that an of a Patrol copy officer had al- sheriff with a legedly alleged struck an arrestee. McKee involvement in a Captain sheriff’s and, allegedly concealed this report after timber theft.
interviewing the officer involved in the al- Elmore met with On October Lt. leged beating, collaborated with Lt. Hick- suggested Whitmer and Superintendent writing man in another report discrediting to Hughes Troop that be transferred “C.” allegations. Sergeant arrestee’s Zorsch testified, however, Whitmer Superintendent testified that while he believed some was concerning Hughes that no decision true, arrestee’s allegations Captain were meeting. It is unclear from reached McKee reasonably could have reached a dif- the decision to transfer the record when ferent conclusion and was not to trying Superin- reached. Hughes actually coverup something. was uncertain about the tendent Whitmer date, Thursday,
Hughes testified that he told his exact but surmised was wealthy friend, Trieman, Major industrialist Hoffman testified Claud a mem- October 1981. Commission, morning of ber of the the decision was made the Governor’s Crime Hughes Major Hoffman became also enlisted the aid of this friend in tendent of the Patrol. Hughes’ Superin- Superintendent of the Patrol. unsuccessful bid become and is now the to 16, 1981, day Hughes Hughes’ was told noted October various “controversial ac- tions,” including decision. report his about the two teachers, school his foundless accusations event, In any on October Elmore re- Hughes’ that a fellow resident had slashed to and Troop troop- turned “G” told several tires, on-the-job car and his association with having Hughes ers that he was transferred Claud Trieman Mountain View area Troop Dissension began “C.” then allegedly Hughes who was to in help his bid mount in as Troop troopers “G” took sides Superintendent. become McKee also Hughes. over rumored report wrote another in he which recom- Around Captain October McKee testified Lt. mended that Elmore also be transferred Major that he reported dissension to because he had contributed dissension in Major investigat- Hoffman. Hoffman then Troop “G.” matter, ed the interviewed number officers, Troop and report, wrote a Superintendent Whitmer endorsed the re- 13,1981, dated October in which he conclud- ports by Major written Hoffman and Cap- ed that there a serious problem morale tain signed McKee. "Whitmer also Troop in “G” because of the conflict be- memorandum included recommen- tween Lt. Elmore and Trooper Hughes. Elmore, Hickman, Lt. dations of Lt. Major Hoffman recommended that El- both Whitmer, Captain McKee. believing that Hughes more and be transferred to correct both Hughes Elmore had contributed to the situation. dissension the troop, transferred “C,” 19, 1981, effective October simultaneously Almost Hoff- Major and transferred Lt. to Troop “D,” Elmore investigation, man’s Lt. Elmore wrote his November effective own memorandum entitled “Disciplinary moving expenses offered was provided Trooper Hughes.” W.E. In this Action — memorandum Elmore stated job the same status and pay Troop “C” as enjoyed had “G.” had caused Troop “G” to lose its effective- Hughes’ ness because of uncon- “seemingly decision, Two weeks after the transfer trollable actions” and recommended Hughes filed this suit federal § Hughes be transferred. These “uncontrol- district claiming court state’s fail- lable actions” Hughes’ investiga- included ure him provide name-clearing son, tion of Elmore’s close relation- hearing violated his substantive and proce- Trieman, ship with Claud “ac- process dural fourteenth amendment due public tions toward other indi- private well rights right equal protec- as as his viduals.” tion. U.S. Const. Amend. XIV. also that he was transferred in alleged re- Lt. Hickman added own remarks to exercising taliation for his first amendment Lt. Elmore’s memorandum and also recom- district rights. court held mended transfer. Hickman noted *7 and, therefore, transfer was un- disciplinary Hughes never consulted him regarding law, Hughes der Missouri was entitled to a of Elmore’s son and that hearing due he could process before be Hughes spending was too much time of his enjoined transferred. The district court patrolling area, the Mountain View where Hughes transferring Troop Patrol’s order to already an officer was stationed. Hickman provides “C” until Patrol with a given added his suspicion Hughes had This hearing. appeal ensued. a local copy investiga- sheriff a a Patrol II. Due Process report concerning tion the sheriff. below The district court believed
Captain McKee also attached his remarks memorandum, dispositive issue in case was to this be- suggesting that or not was disci whether transfer cause intense bitterness between disciplinary, For if it Hughes and en- dis disrupting plinary. Elmore reasoned, 43.- troop, Hughes tire be at trict court Mo.Rev.Stat. § should transferred expense 120, (1978) state to also and Patrol General Order troop. another McKee .150 1414 particular in a right held feasible to remain hearing that a be require
V-16-104
Kenne-
can
carried
the Patrol. Arnett v.
troop
action
be
within
disciplinary
before the
1633,
151-52,
have been correct
94 S.Ct.
analysis
dy,
This
would
416 U.S.
out.
in a
sitting
1642-1643,
(1974).
court had been
To
if the district
1415 trol and its members a enti- trooper prescribe is rules disciplining for Patrol mem- tled in- permanent assignment to a is Superintendent bers. Where the seeks to except Perry defeasible for cause. v. Sin- however, a trooper, dismiss his discretion is dermann, 408 at 602 & n. 92 U.S. S.Ct. by limited Mo.Rev.Stat. 43.150. Section § therefore, 2700 Hughes, & n. 7. due has no provides after a one-year proba- 43.150 process in his property assignment interest period, tionary members the Patrol are best, to Troop At an “G.” exhibited subject to removal for cause after a hope unilateral permanent residence charge formal has been in writing filed Willow Springs. by superintendent before or upon finding a by majority a of a board of five Stigma, B. to a Liberty Right days members.... thirty Within after Name-Clearing Hearing filed, petition is the board shall con- contend, does and the district a hearing report duct superin- to the find, court did not has a liber- finding by majority tendent ty being interest in assigned Troop “G.” board, whether the are true charges Rather, what district court decided and if sufficiently serious to warrant re- what Hughes argues appeal that, on un- is .... [Mjembers moval of the ... patrol law, der Missouri the Patrol must him give be subject provided shall to dismissal as a hearing before can any disciplinary action or lighter punishment suspension such as Therefore, be taken him. the Pa- fine, rank, . .. reduction in forfeiture of provide trol’s failure to hearing him a or as the pay, superintendent otherwise rights violated protect- his constitutional as ed by Whitmer, may adjudge. v. 537 § F.Supp. 93, (WD.Mo.1982). disagree 97 We 43.150, terms, by Section its own re both with premises and the conclusions a quires cause showing of after formal inherent in argument. hearing only trooper’s when removal is sought. statutory Under Missouri rules of
1. Right to a Pre-Disciplinary Transfer construction, express mention of one Hearing Under Missouri Law (removal case) cause in thing for im that, The district court below ruled as plies things (in the exclusion all other 43.120, Mo.Rev.Stat. .150 and § Missouri transfers). this case Harrison disciplinary Highway Patrol General Order V-16-104 Co., v. MFA Mutual Insurance 607 S.W.2d manifest, “make member of any the Patrol (Mo.1980) (banc); 146 Giloti v. Hamm- who is confronted with the threat of disci Corp., (Mo.1965). 396 Singer S.W.2d 713 plinary action entitled written notifica If legislature the Missouri had intended to him, tion charges against hearing of the require Superintendent to show cause board, before disciplinary and an appeal all taking any type, to the before other or other Superintendent any disciplinary action by action, taken the board.” types, it would have disciplinary Whitmer, F.Supp. at 95. There are no simple been a matter to have done so Missouri interpreting cases Mo.Rev.Stat. troopers stating non-probationary “are 43.120, .150 or Patrol V— § General Order subject disciplinary action cause.” .5 16-104 are on point De Corp., Poortere v. Commercial Credit (Mo.App.1973). S.W.2d
Section 43.120 of the Missouri Revised Statute, however, only gives type Statutes mentions one Superintendent of Patrol authority broad and discretion to disciplinary action —“removal.” precedent, equal right questions Where is no there state court ordi- have to have of state narily give weight appeal, we will substantial law we are not bound reviewed interpretation interpretation, judge court who to a district the district court’s or clear- Wood, Bishop ly sits in loci the lex state. of review. Luke v. erroneous standard 2077-78, 341, 345-46, Co., Family Ins. F.2d American Mut. (1976). But, Cir.1973). parties L.Ed.2d 684 n. 6 1019 & *9 statute, this inter- of the the cial construction is butressed interpretation This administra- statue the issued on of the pretation V-16-104 General Order
Patrol’s responsibility divided into seven with the agency charged It is February tive quotes relevant it, given The first be considerable major enforcing sections. will including 43.- Reiss, 568 authority, § statutory Beverage Co. weight. Smith provides procedures II .150. (banc); Section Fore- (Mo.1978) 67-68 S.W.2d against complaints general for processing Davis, 488 most-McKesson, Inc. v. S.W.2d with a III deals members.6 Section Patrol also Ford (Mo. banc). (1972) and au- responsibility officer's supervisory Milhollin, 444 U.S. Motor Credit Co. subordinates.7 Section discipline thority 790, 796-797, L.Ed.2d 22 565, 100 S.Ct. right the disciplined trooper gives the IV Postal v. United States (1980); Dymond super- to the action disciplinary the appeal Cir.1982). Ac- Service, 670 F.2d intendent. Missouri that under we conclude cordingly, protect- has no law, the Patrol a member of a grants these sections None hearing predisciplinary in a hearing before disci able interest process trooper a due be is recom- may removal short of dismissal unless the member’s plinary action only The section accused of a him. is assessed mended or the member trooper pre-discipli a dis- afford a a nature that which does is of such violation that re V Thus, is V. Section nary hearing Section the outcome. may missal be hearing whenever quires pre-disciplinary a not create does the amendment fourteenth mem brought against a charges formal are interests liberty or process property due charges pre Formal are of the Patrol. law, ber under state protected those apart from is of however, “when a violation pared, only his violation of proven has not a may that dismissal be such a nature Roth, 408 rights. fourteenth V-16-104, General Order outcome.” 578-79, at 2709-2710. 92 S.Ct. U.S. at Therefore, disciplinary under the V(A). § Order, a outlined in General procedures Liberty Stigma hearing only a formal trooper may demand evidence (cid:127) trial, presented At removal. In when the Patrol recommends eyes him stigmatized his transfer .150, fact, 43.120, Patrol enforcing § neigh- and his in the Patrol peers both his given trooper predisciplinary never a a community. Springs in the Willow dis bors hearing trooper’s when the stigma ad- effect, Hughes argues prior judi- Absent a sought. missal was not penalty to be recom- troop officer feels that commander receives an 6. Whenever than an serious assessed is more that someone under his command mended or accusation order, through law, rule, report regulation, reprimand, or has violated a he must make oral appoint investiga- IIIB, supervi- requires him to an Section II if Under Section channels. investigator responsibility above, may corporal The has the tor. he sory or is a officer contacting complainant person and for- emergen- impose reprimand an or make an oral through complete report warding a written the accused cy suspension remainder of for the report superintendent. channels to the supervisory duty. offi- trooper’s If the tour of classify complaint Un- as either: must founded, Exonerated, may fine sergeant assess a or above he is a cer Substantiated, or Not disciplinary up recommend $50.00 or superintendent deter- then Substantiated. days, transfer, suspension up dismiss- to 30 or action, any, disciplinary if will be mines what troop supervisory com- officer is If the al. trooper to be taken. The accused advised above, trooper’s may accept he or mander may complaint against be directed him and steps resignation and “take immediate written give written of the facts. After version employ- terminating employee if the toward trooper is advised of nature resignation rather than tender his ee desires to action, may appeal disciplinary under Sec- hearing,” and a to further submit IV of the General Order. tion dismissal, charges. Short of or formal or file charges, troop filing commander or of formal personnel gives supervisory 7. Section IIIA trooper inform the effected need above responsibility disciplining subordinates with- disciplinary action before im- the nature of the If, supervisor’s line of command. direct posing it. incident, supervising investigating after
1417
228-29,
versely
liberty
2532, 2539,
affected his
interest
96
2540-2541,
S.Ct.
49
reputation
ability
to gain pro-
Thus,
also his
(1976).
L.Ed.2d 451
the Court has
motion within
Patrol.
Therefore,
made it clear that the constitution does not
Hughes claims
that his
without a
require
government
give
stig-
its
hearing deprived
liberty
him of
without due
employee
hearing
matized
if the public
process
of law in violation
the fourteenth
employee
public employee.
remains a
amendment.
Davis,
Paul v.
424
96
U.S.
S.Ct.
1164-1165.
of Appeals
Several Courts
have
prevail, Hughes
To
must show
public
held that a
employee’s failure to be
more than an
to his
injury
reputation
promoted9 or internal transfer does not im-
caused “by
government
doing
what the
plicate
process liberty
a due
interest as en-
Constantineau,
him.”
v.
See Wisconsin
400
See,
e.g.,
visioned
Paul v. Davis.
Blevins
433, 437,
507, 510,
U.S.
91 S.Ct.
27 L.Ed.2d
Plummer,
(9th
v.
613
768
Cir.1980)
F.2d
515 (1971).
Supreme
Under the
Court’s de
(promotion);
Otero,
Moore v.
557 F.2d
Davis,
693, 708,
cision in Paul v.
424 U.S.
96
(5th Cir.1977) (transfer);
438
v.
Sullivan
1155, 1164,
S.Ct.
(1976),
ment are legal unclear. But whether status due district process grounds, the court did serves as a tangible liberty benchmark of a that his transfer explore Hughes’ claim deprivation enough serious merit federal reprisal was an unconstitutional due process or it is a protection, reflection him for the exercise of his first amendment of a state’s protection some interest be rights. fourteenth though Even yond a common law tort cause of action for any protectable amendment does not create damages, Supreme Court has ruled that interests, interests status, protect without a it does derived change legal a stigma as the first public independent tized cause from sources —such employee’s of action is Sindermann, 408 simply Perry one for under amendment. defamation state law 593, 597, 2694, 2697, and is 92 33 for the state courts to entertain.8 U.S. L.Ed.2d Fano, Norton, 215, 226, (1972); See Meachum 688 F.2d Brockell v. 7510, 7512-13, 2302; 706(2)(E), 7502-03, opinion 8. The district was of the court below §§ gave jurisdiction 771.307(b) (1977). that 42 § U.S.C. C.F.R. Without an identi- § personnel procedures, citing enforce state law liberty proper- fiable or fourteenth amendment Hampton, (D.C. Doe v. Cir.1977) 271-72 interest, ty jurisdiction has no federal court EEOC, and Villareal v. No. 80-0992 under 42 to enforce state em- U.S.C. § CVW2, Adopted Magistrate’s Report and Rec- ployee procedural rights that are created Denying ommendation Plaintiffs Motion state law. Preliminary Injunction (W.D.Mo. July at 8-9 20, 1981). The district court’s reliance on these 9. Evidence was adduced at trial at least misplaced. Hampton two cases is Both discipli- trooper other received a one who had brought Villareal were under the cases court’s nary promoted after transfer had been he was general question jurisdiction, federal 28 U.S.C. transferred. adjudicate plaintiffs rights 1331 to § under See, e.g., federal civil service laws. U.S.C. when, where, certain Cir.1982). why specifying 588, 592 n. 7& or not be transfer- from individuals should should government restrains on the red.10 public employee retaliating against *11 speech or associa- employee’s of the
basis
Second, the
shows
clearly
record
Sindermann,
at
408 U.S.
Perry v.
tions.
the
was not attributable
transfer
2694;
593,
Healthy City
Mt.
92
see
S.Ct.
whistle-blowing activi
Hughes’ legitimate
274,
Doyle, 429
Board
Education v.
U.S.
of
alleged corruption in
concerning
ties
574-575,
283-84,
568,
50 L.Ed.2d
97 S.Ct.
Mountain View
“G,” his surveillance of the
case,
this
the record before
(1977).
471
In
“political”
his
association
Airport, or
claim
dispose Hughes’
us is sufficient
Trieman.
Claud
against
for exercis-
was retaliated
rights.
ing
first amendment
Pickering
A. The
Balance
do
government employees
While
First,
clearly
the
shows
evidence
rights
relinquish
not
their first amendment
designed
the
to resolve
transfer was
service,
public
rights,
those
they
when
enter
debilitating
problem
and
morale
substantial
citizenry-at-large,
of the
rights
The
deter
unlike
Superintendent’s
in
“G.”
inter
subject
paramount
the state’s
Hughes’ conduct
are
mination that
contributed
and,
efficiency
public
of the
promoting
est in
problem
to the morale
rational
through
employees.
it
its
may
performs
have been
services
though
even
the transfer
114,
(1st
Santiago,
v.
F.2d
117
Hughes’ arguably Rosado
562
indirectly traceable to
Cir.1977);
Region,
v.
U.S.
Elmore’s
Miami
speech-related investigation of
Santos
21,
Service,
(1st
25
as a
642 F.2d
Cir.
son, we
view the transfer
Customs
nevertheless
1981).
emphasized
Supreme
and
As the
Court
nonpunitive
reasonable
nondiscrimina
Education, 391 U.S.
signifi
in
v. Board of
tory
achieving
Pickering
Patrol’s
means
1734-1735,
563, 568,
1731,
20
maintaining
in
88 S.Ct.
discipline
cant interest
Education,
has interests
(1968),
811
state
harmony. Pickering v. Board
L.Ed.2d
“the
1734-1735,
568,
1731,
563,
regulating
speech
88
in
employer
391 U.S.
as
S.Ct.
Johnson,
from
significantly
that differ
(1968); Kelley
employees
20
811
v.
its
L.Ed.2d
238, 246-47,
1440,
possesses
regula
in connection with
425
96
1445-
those
U.S.
S.Ct.
citizenry
1446,
gener
of the
in
(1976).
Superin
speech
1421
stitutionally limited to the extent
tion that would appear completely impartial
traceable,
and,
time,
or
directly
indirectly,
either
at the
improve
same
the morale
speech-related
activities.
and efficiency of the
With
troop.
City
mind,
Mount
Healthy
Superintendent
Board
Education v.
viewed transfer
274, 283-85,
Doyle,
effective,
U.S.
S.Ct.
both Elmore
as
574-575,
(1977);
L.Ed.2d
See Bowen
solu
nondiscriminatory
nonpunitive16
Watkins,
669 F.2d
985-86
Cir.
tion to the
problem.
morale
To foreclose
1982).
case,
In
although Hughes’
that solution in this case would entail a
directly
traceable to dissension
serious
Superintend
encroachment on the
“G,” it
within
was at least
ent’s
indirectly
discretionary
per
decision to reassign
speech-related
traceable to Hughes’ various
sonnel in the interest
promoting public
investigations
accusations and
We
regarding
safety.
therefore follow the dicta in
son,
Waters,
Elmore’s
and to a lesser extent his
the “reasonable
reports
officers,
criticizing
report
fellow
possibility
generally
his
adverse harm will
be
regarding
teachers,
the school board
enough
two
invoke the full
judicial
force of
alleged on-the-job
and his
association with a
for a police department’s
solicitude
internal
so,
wealthy industrialist. Even
applying
discipline.”
morale and
See also Connick v.
Pickering,
- U.S. at -,
factors enunciated in
391 Myers,
Furthermore, the not re appropriate transfer deci the forum in which to sion here was entirely appropriate pub an and view personnel by the decision taken achieving reasonable means of em agency allegedly the Patrol’s lic in reaction to the significant discipline However, interest in even maintaining ployee’s [speech activity].” Admittedly, and harmony. activity a transfer if the speech may fairly be charac speech-related traceable to of activity prop involving public is terized as matter con cern, of erly subject the first chal its justifying amendment the state’s burden in lenge, even the transfer though depends resulted in decision the nature personnel upon no loss of pay, seniority, employee’s expression. or other benefit. of the Id.- 497, 1691-1692, v. Egger (7th U.S. at -, 669 F.2d 75 Phillips, 501 103 S.Ct. at L.Ed.2d Cir.1982), McGill v. at in inquiry Board Education of 722. relevant Particularly School, manner, time, Elementary 774, 602 in the place Perkins F.2d is and which - Cir.1979). However, (7th speech-related activity 780 occurred. Id. at-, 1692, in officers “G” had 103 at 75 L.Ed.2d Troop loy divided their U.S. S.Ct. Elmore, at alties between and 723. As the court noted Givhan v. Su District, perintendent required devise solu- Western Line Consolidated School moving expenses assignment particu- was offered and was an undesirable provided job pay larly probative the same status and as to whether the transfer Hoffman, Troop enjoyed punitive. Major Troop “C” as he had “G.” If who recommended “C,” punitive, Hughes the transfer had been could testified that transfer moving expenses. upon personnel have been denied The view decision was made based by troop troopers shared few rural “C” needs of other commanders. 1422 410, 693, 4, his 4, tagonistic exercising 414 99 696 n. manner first n. S.Ct.
439 U.S.
(1979),
rights.
amendment
employing agen-
At improprieties testified that he believed were never mentioned alleged Captain interviewed, McKee in he not by any troopers was involved a ticket-fix- of the de- ing years ago, Hughes incident some five or but even testified that Hughes. six in told the morale regarding problem he never dation opportunity, the spite having Pa- else the “G.” Hoffman within anybody or investiga- staff about his trol’s command alleged improprie- these concerning tions with Hughes' D. “Political" Association
ties;
report
ever
Hughes
any
nor
file
did
Trieman
Claud
the cir-
incidents. Under
regarding these
Despite
suggestion,
dissent’s
cumstances,
Hughes
do not believe
we
that
Hughes’
is no
for
claim
support
there
his
can ever
that
shown or indeed
show
protected as
off-duty
his
first amendment
were
whistle-blowing investigations
reputed
Trieman
a “moti
with
was
sociation
Claud
Mount
what
his transfer.
caused
decision,
the transfer
vating factor” behind
Doyle,
District v.
Healthy City School
transfer
let alone the “but for” cause
568, 576,
274, 287,
50 L.Ed.2d
97 S.Ct.
U.S.
Healthy, 429
Mount
decision. See
(1977).
show
at 576.
record does
Finally,
support
Hughes’
is no.
for
there
complained
troopers
other
was transferred because
claim
he
Trie
on-the-job association with
Hughes’
interfere
sought
Patrol
of or
disapproved
performance
with the
interfering
man was
legitimate
with his
surveillance
Troopers
expressed
duties.
also
of his
drug
Airport
possible
Mountain View
for
in
currying
was
favors
Hughes
belief
Quite
Hughes
to the
importation.
contrary,
support
his bid
to elicit Trieman’s
in
order
actively en-
Captain
admitted that
McKee
Superintendent’s position.
How
for
surveillance,
though
couraged Hughes’
even
ever,
is not so bold as to
even
dissent
representative
complaint
a state
had filed a
Hughes’
rights permit
associational
suggest
regarding
surveillance.
also
with whomever he likes
him to associate
a call
Captain
placed
testified that
McKee
he
duty.20
likes while
is on
and whenever he
City requesting
surveillance
Jefferson
And,
assuming
even
criticism
Hughes. Later, when the
equipment for
association with Trieman
Hughes’ on-duty
equipment
surveillance
was not forthcom-
interpreted
implied
as an
criticism
ing, Hughes
asked
McKee
Captain
never
off-duty
association
Hughes’
legitimate
renew the
We can
no indica-
request.
find
Trieman,
clearly
the record
with
we believe
ever
with
tion
the Patrol
interfered
decision would have
shows that
surveillance,19
though Hughes
even
of such
made
association.
regardless
been
spent
year
project
had
an entire
on this
of the
primary
source
dissension
finding any tangible
without
evidence
ever
concerned
and Elmore’s
Troop of impropriety.
possible
over
son’s
involve
battle
Elmore’s
as
Furthermore,
drug-related activity. Hughes’
Superintendent Whitmer ment
peripheral
was
testified
had
sociation with Trieman
transfer decision
hence,
and,
at the
not
nothing
representa-
to do with the state
this dissension
effort
airport
Superintendent’s
tive’s criticism of the
surveillance.
center of
by transferring both
Major
remedy
This
the dissension
testimony
corroborated
Hoffman’s
and Elmore out
“G.”
report
internal
and recommen-
“off-duty”
memorandum,
In an
Hickman
critical of
association
internal
Lt.
were
necessary
However,
expressed
opinion
supporting
his
that was not
far from
Trieman.
with
spend
patrolling
Report actually
all of
position,
his time
re-
dissent’s
interpret
View area.
Mountain
We do
McKee,
troopers
“Troop
like other
veals that
suggestion
disapproving
or
as either
G,”
personal politi-
Hughes’ own
believed that
interfering
surveillance
determining
where
cal ambitions were
Instead,
Airport.
Lt. Hick-
Mountain View
duty.
spend
time
while
would decide to
suggestion
man’s
was made because an officer
testimony
ref-
does contain
And while
trial
already
View
stationed
the Mountain
political
association
erences
area.
Trieman, nothing
can be
those references
about
*17
Hughes’ legitimate
interpreted as
a criticism
Report
points
Disciplinary
The
dissent
to the
off-duty
with Trieman.
association
Captain
McKee as
that officers
evidence
E. Conclusion
“name-clearing” hearing. Certainly a find-
the
ing that
transfer was sufficiently disci-
We therefore conclude that it is unneces-
in nature so as
plinary
trigger
to
“name-
judicial
sary and would be waste
re-
clearing”
is not
hearing
inconsistent with
sources to
this
to the
remand
case
district
our conclusion that
the transfer was also
court for a
whether the
determination of
to
designed
remedy
problem.
dissension
discipline
transfer was
designed
Indeed,
above,
as we have indicated
legitimate
for
of impro-
here
bemay
transfer
characterized as disci-
“G,”
prieties in Troop
his surveillance of the
that
plinary
indirectly
sense
Airport,
Mountain View
or his association
traceable to
dissension
ac-
Hughes’
causing
with Claud Trieman.
(as
tivities
from his
distinguished
legitimate
dissent, choosing
rely
on
entirely
activities). However,
whistle-blowing
hav-
that
uncorroborated claims
he was
ing carefully
inter-
weighed
substantial
disciplined
legitimate
for his
whistle-blow-
speech
ests of
Patrol and
inter-
activities,
ing
concludes that we should not
est, we have concluded that
the transfer
any
accord
deference to the Patrol’s deter-
here was an entirely
decision
reasonable
mination
because of his
measure and
not violative of
dissension causing activities. The dissent
rights.
support
cites no case
novel proposi-
Indeed,
tion.21
as we have mentioned
striking
Pickering
In
balance
above, the
authority clearly
case
indicates
case, we are compelled
emphasize
that
that we should accord
defer-
considerable
are
speech
free
claims
not to be considered
ence
an
Patrol’s determination that
in a
must
light
vacuum but
be viewed in
employee’s
disrupted
activities have
effi-
circumstances
in the context of all
ciency
morale. See Connick v. Myers,
relevant
existing
conditions
at
time of
-
-,
at
at
U.S.
S.Ct.
speech
asserted free
activities. Nor
723; Kannisto,
L.Ed.2d at
541 F.2d at
speech rights
should free
pro-
be utilized to
citing Kelley, 425 U.S. at
S.Ct.
immunity
vide
to other
actions
merit
1445; Waters,
any
facts presented Whit- Supt. Airport. Although The tain View only story. one side the resent he did not legislator mer told the state key version of the following how to legislator the to tell him want state his leading up incidents to transfer. Patrol, assure Supt. the Whitmer did run make an legislator that he “would state THE I. “FACTS” “resolve inquiry into the matter” and would transfer, preceding In the months his Tr. at 31. problem.” investiga- was involved in several Hughes was involved in an incident Hughes also ire of his tions and activities that raised the a cover-up led to a alleges which Lt. particularly Elmore. One supervisors, duty. dispatcher’s dereliction son’s investigation concerned Lt. Elmore’s this “baseless” majority The refers to as a investi- alleged drug dealing. During this Supra accusation. 1420. One Hughes partner, Trooper his gation, desk Hughes working was evening Tuschhoff, was that Lt. Elmore suspected headquarters shortage of a desk because to his son his son’s leaking information person other personnel. The To their Tuseh- verify suspicions, cohorts. dispatcher. Hughes radio office Lt. information gave hoff Elmore fictitious received a a serious auto acci- reporting call a planned raid on the residence of about Hughes, being the closest dent in area. whom suspected drug dealers with group responded to the and left the trooper, call day son next Elmore’s was associated. The scene, to At the dispatcher cover desk. suspects these moved out of Willow had been there Hughes discovered Springs. cars at the head-on collision between two Moun- investigation Another involved the very of a The area was dark. crest hill. Airport. Hughes tain View had received road, while the blocking One car was suspicious late-night information a person car in a ditch with other flights airport might in and out of the be pouring it. Gasoline was pinned inside of drug smuggling. response related to In gasoline tank to- ruptured from one car’s information, Hughes Capt. asked injured occupants ward one of the night special McKee obtain surveillance victim was soaked blood cars. Another McKee, Hughes equipment. Capt. roadway a daze. In walking placed Capt. a call to Maddox who present, short, situa- Hughes highly dangerous had a charge Capt. the equipment. was in He radi- cope tion to with all himself. he had Capt. Maddox informed McKee that truck, an am- dispatcher oed the for fire equipment surveillance that would be avail- bulance, wrecker. The radio dis- and a Capt. Hughes able. McKee then told busy replied that he was on patcher angrily get equipment he would and that no further phone. dispatcher gave The investigation. Hughes should continue request and did not dis- answer Capt. Hughes But McKee also cautioned Hughes Hughes. patch any assistance conducting very that he should be careful in dispatcher the reason the explained that several prominent his did angry dispatcher was because the citizens housed their aircraft at Mountain both the like to left alone answer not be The never equipment View. surveillance Eventually assist- and the radio. phones came, however, despite the fact Police of City when the ance did arrive two Hughes request his on at least requested renewed dispatched the Springs Willow Tr. at 84. event it did any occasions. overheard they after equipment matter, Hughes because soon after dis- help radio. pleadings Sergeant. to his Zone superiors, reported closed information this incident flights It was him not tell suddenly stopped. Sergeant told Hughes’ Zone suspicious anyway. who did legislator Captain, also revealed that a state but report, to write plane Captain visited kept his at Mountain View had told then took Captain which complained length did. Supt. Whitmer and *19 Hughes’ report dispatcher to the and notes, told Commission. As the majority the dispatcher report. to rewrite the The Trieman, Hughes did so in the hope as dispatcher the report exonerating rewrote Commission, a member of Crime could himself and blaming Hughes for inci- intercede the higher with echelon at Patrol dent. This revision became official re- Headquarters General to initiate some re- port. Captain Hughes The then told form Troop within “G.” Tr. at 89-90. he was not to to report incident Patrol Hughes also poli- had become involved in Headquarters General City Jefferson be- tics developed political and had a asso- close Captain cause the not superi- did want his ciation awith “local industrialist” named ors in Jefferson to think could City he Claud Trieman —the same Claud Trieman run Troop. his also Hughes testified that who was a member of the Governor’s Crime Lt. Hickman told him to “play cool. help With of Commission. Trieman and just got couple years We’ve a more other Hughes local politicians, sought to get we’ll all retire and out your hair.” Superintendent become the of the Patrol. Tr. at 91-94. Hughes eventually lost the to nomination Yet another investigation concerned an Supt. Whitmer. But initial foray “police alleged cover-up brutality” occur- politics into superiors. incensed his Accord- ring Troop at headquarters. “G” According Hickman, ing to Lt. Hughes, Lt. Elmore to Hughes, troopers per- two carried out a and Capt. McKee Hughes resented because sonal vendetta a person by arrest- political his activity was “not a normal ing beating him and him he while thing for in [Hughes’] position one as a handcuffed and in the troopers’ custody. lowly Tr. at trooper.” Hughes 68. also An report internal pre- incident was Capt. testified that told McKee him he bet- pared by Sgt. Sgt. Zorsch. report Zorsch’s ter not associate with Trieman because revealed that allegation was in part begun Trieman get poli- had involved in true and that troopers one of accused tics. Additionally, the disciplinary reports even admitted beating the arrestee. Tr. prepared by Capt. McKee and Lt. Hickman McKee, however, at Capt. rejected 150. list off-duty political association Sgt. Zorsch’s report ordered him to with Trieman as one of the why reasons an submit abbreviated version which would Hughes disciplined. Capt. should be state that the injuries arrestee received his report McKee’s “Dis- endorsement of the accidentally when he Sgt. fell down. W.E. ciplinary Trooper Hughes,” Action — Zorsch was also to destroy orig- ordered (hereinafter ¶ 2 Exhibit at referred to report inal and to submit the abbreviated Report). as Disciplinary version to headquarters as the official re- The case chronology the events port. Sgt. Zorsch Capt. followed McKee’s is also staff at Pa- important. senior even though opinion orders he was of the Headquarters City trol in Jefferson full, fair, original that the was a report Troop received information about trouble in accurate recount incident. Tr. at August Capt. “G” in of 1981. At that time report 149. retrieved the from the Maj. McKee told Hoffman about a “prob- office waste paper because he believed Troop. “problem” lem” within the Capt. McKee and Lt. were at- Hickman implicated that Lt. Elmore’s son had been tempting to cover due to up incident a selling illegal drugs. Tr. 202-03. On rights threatened civil lawsuit. September Maj. Hoffman received in- such cover-up felt a violated the law legislator formation that the state who and was extreme breach of law en- Air- airplane housed his at Mountain View duty. forcement officer’s Because complained Captain had port did not trust immediate superiors Troop “I” Mountain View Supt. Whitmer was unavailable to about time, the At about this same Hughes, Hughes investigation. took this and other infor- also legislator complained bitterly mation Trieman state friend named Claud Supt. investigation. who was about Hughes’ member of Governor’s Crime Whitmer Capt. if McKee would ac- meeting asking was at this with Hoffman Tr. at It Supt. prom- legislator trooper’s state Whitmer transfer cept “C” problem.” “resolve the ised that he would Tr. exchange Hughes. thereafter, Lt. Elmore met Shortly agree. McKee said would Capt. complain Whitmer to about Supt. Maj. Yet, according testimony to the associa- Hughes’ political Hoffman, decision During Tr. 28-29. *20 tion Trieman. 16. 15 or was not made until October Whitmer, meeting with Supt. Lt. Elmore’s Lt. returned from Jeffer- After Elmore Elmore for his advice Supt. Whitmer asked he information from City began son to seek Superintendent proceed on how the should discredit Troop members that would that Elmore suggested on this matter. Tr. 164-65. Elmore even hired Hughes. at Troop be “C.” Hughes transferred to Hughes. to Mean- investigate someone rural Troop by many “C” is considered while, Lt. a dated prepared report Elmore Patrol. troopers to be the “Siberia” of the 12 in that October which he recommended fact, 139, 156, 172. at least Tr. In inves- Hughes be transferred because of his Troop “G” trooper one from was transfer- son, because of tigation Elmore’s being red to Troop punishment “C” as “seemingly Hughes’ other uncontrollable duty. intoxicated on Tr. at 54. After while that dis- years” actions over the last few suggestion, Lt. Elmore made this the meet- Patrol, the credited because ing Supt. ended and Whitmer told Lt. El- local “Hughes’ close association with a more that Hoffman “resolve” Maj. would in- heavily industrialist who wealthy Whitmer, problem. Tr. at 29. Supt. politics.” Disciplinary volved statewide however, denied that he to made a decision endorsement, 1. Report at Lt. Hickman’s at that 28-30. Hughes timé. Tr. day, dated the same also recommended Yet there to testimony according was the reasons Hughes’ transfer reiterated Elmore, Supt. Lt. Whitmer Lt. El- asked turn, Lt. In McKee given by Capt. Elmore. more to troop Hughes which least would on 13 and con- report endorsed October like to be Lt. assigned. reply Elmore’s Hughes had “caused cluded Troop and, “C” re- reportedly, Whitmer’s ... with great Troop deal turmoil sponse was “that’s where I’ll him.” send political man- his controversial actions Tr. at 139. he uevering,” should be transferred “for Up until point, the first of around 5, ¶ all benefit of concerned.” Id. at 10. October, there was no within dissension Lt. day endorsing after Elmore’s re- Troop 145-46, 143-44, “G.” Tr. at 158. that Lt. port, Capt. McKee recommended When Lt. Troop Elmore returned to “G” also be Whitmer Supt. Elmore transferred. City, from Jefferson around 3 or October and final endorsement on placed third troopers he told having several that he was Supt. then report. Lt. Elmore’s Whitmer Hughes transferred to It was Troop “C.” ordered-sHughes Troop to be transferred to only at this juncture began dissension “C,” effective and Elmore to be October to brew in as Troop troopers “G” took sides “D,” Troop transferred to another rural over the Tr. rumored transfer of Hughes. troop, effective November Whitmer’s 143-44, Capt. 206. On October McKee endorsement, however, was dated October Maj. called Hoffman told him of 27,1981, eleven after was told days Hughes growing At request, dissension. McKee’s to report Troop “C.” Maj. Hoffman came down Fri- Maj. met with Hoffman next day Troop’s in order to discuss 16, 1981, day decision day, October problems during with some of its members made. supposedly to transfer regularly Hoff- meeting. Maj. scheduled report ordered man interviewed several con- Hoffman members and “C,” Mon- 200 miles away, cluded that into some troop split indeed Then, camps. permanent assignment. two 19 for Capt. day, on October October impending of his Maj. McKee from had heard rumors telephone received call transfer, meeting Cir.1980). at this Maj. asked The present record contains Hoffman, “How come a Representa- many State disputed facts which can be re- tive knows over a week ahead of time that Thus, solved on the basis credibility. being I’m moved.” Hughes testified that procedural of this case is in posture many “Well, Maj. replied, Hoffman I didn’t tell. ways similar to that of cases which reach It wasn’t me told.” Tr. court after the defendant has obtained summary judgment. summary judg- II. THE RECORD EVIDENCE cases, ment court appellate will view the facts in the most light favorable disputed facts, From highly these ma- “give and will jority opinion non-moving party party important makes two factual the benefit of all inferences findings: (1) the reasonable present record “clearly be drawn from the designed underlying shows that transfer was facts.” debilitating Liberty Corp., resolve substantial and EEOC Loan mo- problem ”, Thus, in Troop (2) Cir.1978). rale ‘G’ and Hughes' reviewing *21 “wholly claim, transfer was his pur- Hughes’ unrelated to first amendment we should ported corruption exposing activities.” favor of over Hughes’ See version the facts the 1417-1418, supra 1423. done, Based on these Hughes’ Patrol’s version. If this is findings, majority opinion concludes that first amendment claim is far from frivolous. the balance between the in- government’s efficiency Motivating
terest in and A. The Factor Hughes’ first amendment “tilts heavily interests ... so in majority The first opinion’s factual con- of Hughes’ favor the Patrol’s interest that only motivating clusion is that the factor in first amendment claim borders on the frivo- to transfer Hughes Patrol’s decision present On the Supra lous.” 1418-1419. was the to debilitating desire resolve a mo- record, I agree. cannot problem Troop rale in I agree “G.” cannot emphasized
It must first be that dis- this factual conclusion it is trict court below did not Hughes’ contrary findings address to the district court’s first amendment cause of relating process action. There- fact to the due issue. fore, we no pertinent Throughout below, have of fact findings trial Patrol took with which to review the first the position Hughes amendment was transferred by Hughes’ issues raised complaint. merely personality The to a conflict remedy be- majority points Elmore, out that the determination tween and Lt. not Hughes and as of whether protected conduct is for by punishment Hughes’ investigatory and is a question political of law which ap- activities. Patrol’s witnesses pellate courts are to qualified Hughes answer with- also testified transferred regard out to a findings Troop district court’s to in particular simply “C” to correct n. While it at 1418-1419 supra troop a Troop fact. imbalance within “C.” The be may balancing govern- true that testimony presented whole thrust of the ment’s interests against Hughes’ an in- the Patrol was that employee’s transfer was determination, legal terests is a disciplinary it is a de- not a measure. The majority termination which opinion must be rooted in adopted histori- Patrol’s version of Chaffin, cal fact. See Waters v. exception. 684 F.2d the facts without But the dis- (11th Cir.1982); 837 n. 10 court, listening Bickel v. trict after to both sides’ Burkhart, demeanor,1 studying n. witnesses and their witnesses, troopers It should be noted that at least two heard the can determine whether they repris- testified feared that testimony. there would be fear affected the witnesses’ against they adversely als them if testified factor, appreciated by This which cannot be superiors. See, 156-57, 160, e.g., their Tr. at record, reading important a is an cold element 171, 173-74, 131. fear Whether was more determining testimony credibility imagined than real is fact irrelevant. re- and, concomitantly, deciding disputed ques- troopers they mains that the felt this fear when amplifies need tions fact. This factor Only court, testified. the district who saw and rejected you Hughes the Patrol’s fac- recommend the transfer of exception
without
the transfer
Elmore?”
hearing
After
a
recommend
tual
assertions.
question
Lt.
to this
injunc-
Hickman’s answer
was:
preliminary
motion for
trooper
where
going
stop
tion,
specifically
court
found
“When is
the district
And
is
can take on a lieutenant?
when
punitive
and dis-
transfer
investigate
to be
trooper
permitted
echoed
going
This
ciplinary.2
finding
and his son?” Tr. at 368.
decision on
merits.
lieutenant
district court’s
There,
is the Patrol’s coun-
Hughes Equally illuminating
court held
the district
judge.
an
the district
remedy
closing
“was not
‘C’
sel’s
colloquy
sent
”
Counsel,
‘C’ and that
it felt
the Patrol did not
arguing
imbalance in
weight
the evidence to
“compelled
Troop “G,”
said
want
back in
feels,
ordered the
if
conclude that
the defendant
Patrol
is
happen,
“What will
returned,
rea-
plaintiff
disciplinary
will
faction
Trooper
Whitmer,
537 F.Supp.
sons.”
and items that
begin to continue the events
(W.D.Mo.1982).
find-
These factual
Tr.
391. Ac-
they were involved in.”
court
ings
the district
believed
show
Hughes’ Disciplinary Report,
cording
his witnesses and disbelieved
included
those “events
items”
findings
These
the Patrol’s witnesses.
illegal
legitimate investigation
possible
implicit credibility
therefore
represent
son, Hughes’
drug dealing by Elmore’s
witnesses,
finding
in-
Patrol’s
View
which
Airport
Mountain
defendant,
cluding the
favor of
so
a state
upset
legislator,
credibility
Hughes’ witnesses. This
deter-
with “a
indus-
political
wealthy
association
*22
mination,
made
the trier of fact who
The
itself
Disciplinary Report
trialist.”
actually
testimony,
the live
heard
saw
principal
lists
items
reasons
these
as
to
should
cause this Court
read the
again
and, im-
why
be transferred
Hughes should
in the
most
light
record evidence
favorable
not
Elmore should
be transfer-
plicitly, why
Instead,
Hughes’
majority
position.
Also,
testimony
red.
the record contains
opinion rejects
testimony
Hughes
Supt.
that
Whitmer de-
presented
prove
and his witnesses without comment in favor
Hughes,
cided to transfer
aof
ratification of the Patrol’s witnesses’
alone,
response
legislator’s
the state
Normally,
would
testimony.
we
least
Hughes’
Elmore’s
about
complaints
Lt.
the district court’s
findings
scrutinize
associations.
investigations
political
clearly
fact
under
erroneous standard
convincing
this
proof,
far from
Although
review. See infra at 1434n. 6.
in-
testimony
support
does
reasonable
complaints
these
were a sub-
that
ference that
record evidence demonstrates
Whit-
clearly
motivating
Supt.
the district court’s
are not
stantial
factor
findings
Indeed,
incidents which
erroneous.
there is substantial evi- mer’s decision. Two other
after
transfer drive
support
Hughes’
dence to
conclusion that
occurred
punish
point
trooper
In one incident
was transferred to
him.
home.
McKee that the Patrol
punish
by Capt.
But
him for what?
answer
“reminded”
the state
being
shortage
personnel
is that
for
had a
across
punished
he was
investi-
“cooperate” with
possible
trooper
not
gating
wrongdoing by
superiors,
his
and if
did
not
Captain
then the
“would
reporting
findings
Captain,
for
his
to a member of
Commission,
trooper
with the
expected
cooperate”
the Governor’s
and for
be
Crime
changes.”
“in
political
personnel
his
reference
these
associations.
Informative
incident,
regard
separate
Lt.
Tr.
In
response
Hickman’s
to the
at 157.
another
was mentioned ear-
“Why
legislator
district court’s direct
did
question,
state
Hughes’ first
remand
case so
the trier of
can
reach the merits of
fact
disputes.
preliminary injunction
granting
resolve the factual
claim in
the Patrol.
finding
2. This
of fact
related to
process
due
count.
court
district
did
Her told a trooper,
got
trooper
See,
“I’ve
one
e.g.,
143-44, 206,
tions.
Tr. at
get
moved and I’ll
you
you
moved if
fool Elmore made these statements around Oc-
tober Maj.
with me.” Tr. at 320-21. There
Hoffman did not
was sub-
conduct
investigation until
stantial
from
October 8. Of course
testimony
Troop
troopers
Maj.
dissension,
Hoffman observed
but the
they
speak
now fear to
out against
dissension he saw was in all
gen-
likelihood
commanding
their
officers and are also
erated by Lt. Elmore’s disclosure that
investigate
afraid to
or arrest certain peo-
Patrol had decided to transfer Hughes.
See,
ple.
156-57, 160, 171,
e.g., Tr. at
173-
fact
morale in
“G” has continued to
74, 177.
decline, rather than improve, after Hughes’
The second reason
I cannot
why
agree
and Elmore’s transfers.
troopers
Several
that dissension
motivating
was the
factor
view
transfer as a signal that di-
transfer is that the record rais
versity
opinion
will not be tolerated. At
es a substantial question as to which came
least
two troopers actually testified that
first. Did the dissension cause the Patrol to
they fear reprisals
superiors
from their
if
Hughes or, rather,
transfer
did the Patrol’s
they speak out' or testify against their supe-
decision to transfer Hughes cause the dis
riors or if
arrest the
they
wrong people. As
present
sension? The
record does not make
above,
mentioned
there is some testimony
the former
plausible
latter,
more
than the
supports
the inference that Supt.
and, if one views the facts in the light most
Whitmer decided to
favorable to Hughes, the latter reflects the
days
few
in response
October
probable
more
sequence of events. Because
complaints from the state legislator and Lt.
first amendment rights are held in such Elmore concerning Hughes’ activities. This
esteem,
high
courts must conduct an “indi was before the dissension erupted
vidualized and searching” review of the
legislator
“G.” The state
had even bragged
facts to
exactly why
govern
determine
was he who had
transferred
ment took the action that
it did. For the
and he tried to
procure
use this fact
reason,
same
courts must view
govern
trooper.
deference from another
self-serving
ment’s
justifica
after-the-fact
It must
paperwork
be noted also that the
tions with studied skepticism. See Peacock
rationalized the decision to transfer
*23
Duval,
Cir.1982);
F.2d
Hughes substantially lagged behind the ac-
Tygrett
v. Barry,
(D.C.
tual
Hughes.
decision to transfer
For ex-
Cir.1980).
Finck,
See also
Nonpartisan
ample, Supt. Whitmer
not
did
endorse the
Speech in the Police Department: The Aft
transfer recommendations until October
ermath
Pickering, Hastings
L.Q.
Const.
days
Hughes
eleven
after
was transferred.
1001, 1017(1980).3 This is
true in
especially
Hughes’
1983 suit was filed two weeks
§
cases,
one,
such as this
in which the trier of
transfer,
Maj.
after the
but
Hoffman knew
fact has
general
made a
credibility finding
that Hughes
represented
was
counsel as
by
government’s
witnesses.
of the day Hughes
report
was told to
At least two troopers testified that there Troop
According Hughes,
“C.”
the offi-
was no dissension
debilitating
and no
mo-
transfer,
cial
Sgt.
rationalization for his
like
problem
rale
in Troop “G” until after Lt.
arrestee,
report
injured
Zorsch’s
on the
may
began
Elmore
spread
the word that
have
shaped by
litiga-
been
the threat of
Hughes was to be transferred in retaliation
Although probative,
agree
tion.
I
with the
for his
investigations
political associa-
that this
majority
evidence is far from con-
majority
dissenting
-,
3. The
comments
103 S.Ct.
1692 n.
opinion
support
“ques
offers no case
for
(1983) (collecting
L.Ed.2d 708
cases which hold
proposition”
tionable
that a court should not
that even after the trier-of-fact determines the
judgment
litigant
defer to the
of a
when con
facts,
appellate
historical
court must exer-
fronted with first amendment
issues. See su
independent
judgment
cise its own
about
pra Majority Opinion at n. 13.
I offer the
significance
constitutional
of those facts when
authorities,
above
and those cited infra at note
stake).
rights
first amendment
are at
support.
Myers, -
for
See also
Connick
have entered into the transfer
*24
the
of this
bility
development
for
decision
Thomas,
Barrett
to the
staffs of
“G” and
Troop
command
Cir.1981).
majority opinion
does
Tr. 272. What
is
Headquarters.
Patrol
legitimate
Patrol had a
mention that
the
certain, however,
Supt.
is that
Whitmer did
his “on the
Hughes for
grievance against
activities as
Hughes’ political
know about
and for
with Trieman
job” association
Airport
View
Hughes’
well as
Mountain
area
patrolling
time
the
too much
spending
reac-
legislator’s
and the state
when that area was
which Trieman lived
in
tion to it.
trooper.
by another
already
patrolled
however,
is
Disciplinary Report,
Hughes’
the dissen-
majority
also states
why
of the reason
the
statement
the best
wholly unrelated to these activi-
sion was
off-duty politi-
Hughes’
did not like
Patrol
Therefore,
the
concludes
majority
ties.
with Trieman:
cal association
was
the transfer decision
that because
a
“G,”
practice
has made
Trooper
in
solely
based
on the dissension
in
Springs
east of Willow
patrolling
activi-
purported whistle-blowing
View
Mountain
and Summersville area
ed activities were a substantial or motivat
person
working
when no other
was
in
ing
government’s
factor
decision to
approved
Zone 1.
of this
area from
We
against
plaintiff?
take action
Mt.
to the
practice due
fact
the area
City
Healthy
Doyle,
Board
Education
attention,
our
needed
and
member
274, 287,
568, 576,
S.Ct.
a great
able to make
number of arrests
(1977)
(Mt. Healthy).
L.Ed.2d
warnings in
area.
peri-
and
After a
so,
(3)
If
has the defendant met
shift
time,
closely
od of
our member became
ed
that the
proving
burden
same actions
wealthy
associated with a
in
industrialist
against
plaintiff
would have been taken
the Mountain View area. We welcomed
plaintiff
engaged
pro
had the
not
in
help-
the fact that our
was being
member
so, the plaintiff’s
tected activities? If
claim
great
ful to a man who was
finan-
giving
amendment retaliation will be de
first
cial
by providing industry
assistance
and
feated. Givhan v. Western Line Consoli
jobs to the
residents
Mountain
District,
410, 416-17,
dated
439 U.S.
School
area; however,
ap-
View
soon
became
693, 697,
(1979)
the Missouri Patrol Highway and hopeful that his friend could assist him. In order to inquiry answer threshold in Hughes did succeed Su- becoming of whether the employee’s activities are perintendent; however, he has left protected by amendment, the first the court impression with some members of must the government’s balance interest in G that he has in strong people ties promoting efficiency discipline high places. gather- in employee’s speaking, interest Report 3, 2 Disciplinary (emphasis ¶ add- information, ing engaging political in ed). Additionally, willing the Patrol was majority associations with others. The stipulate nothing trial there was case concluded evidence so improper job about on the associa- heavily favors the Patrol’s interests that tion with Trieman. Tr. at 116-17. Both claim borders on testimony at trial Hughes’ Discipli- disagree. the frivolous. I must nary are Report replete with references to Hughes’ off-duty political activities as- 1. The Government’s Interest strong sociations. This is a indication that my legitimate off-duty political opinion, majority In decision is activi- ties and associations a premised upon overly were substantial mo- deferential con tivating factor in the decision to transfer interests in efficiency cern for Patrol’s Hughes. discipline. example, majority For opinion government’s states that the inter III. THE LAW efficiency est is promoting paramount reviewing public employee’s claim public employee’s first amendment inter that he punished has been engaging is ests. notion abhorrent our Such activities, first amendment the court must It also con nation’s democratic ideals. major address three issues: cases which hold that trary long line of (1) plaintiff Has the met the initial bur efficiency is but factor administrative one den proving that he was engaged weighed Pickering to be balance and *25 activity protected by the first amendment? See, e.g., is means by no determinative. Education, Pickering v. Board of 391 U.S. 644, (9th Duval, v. F.2d 647-48 Peacock 694 563, 568, 1731, 1734, 20 811 88 S.Ct. L.Ed.2d ano, 770, Cir.1982); Porter Calif 592 F.2d v. (1968) (Pickering). (5th v. Cir.1979); Tempe 773-74 Bernasconi District, 857, (2) so, Elementary If the 548 F.2d plaintiff has met the burden School denied, 825, Cir.1977), of 434 U.S. proving constitutionally protect- (9th that 862 cert. 1434 to in the weighed is one factor be 72, (1977).4 just 82 Addi- 54 L.Ed.2d
98 S.Ct. balance, indepen- no Pickering in- and it has government’s for the tionally, in order the that weight significance compel would efficiency carry to dent any terest in a en- balance, a to law judiciary the to defer fortiori Pickering in the whatsoever that impinges decision by agency’s the forcement must have been caused inefficiency v. actions, rights. Tygrett by upon the first amendment employee’s employer’s 1279, (D.C.Cir. n. 3 Barry, 627 F.2d 1283 & first amendment employee’s reaction to the 1980). has a non-dele- Quinn, judiciary F.2d The federal Monsanto 674 activities. See independent and 990, duty It anse- to conduct an (3d Cir.1982). gable would be 998-99 of the factors asserted government discipline “searching the review rine to to permit [discipline]. the disruption justify caused the employer its because of employees is assure such a review to purpose reaction The repressive the government’s applied have been with those factors the first amendment activities. employee’s be first amend- the the deference to accorded agree majority I readily majority, The rights.” not ment Id. 1283.7 Hughes’ first amendment activities did however, position that the Patrol the this case. takes the directly cause dissension in rub; degree of discretion lies the without a causal substantial And therein that, the affairs and conducting personnel the dissension and its relationship between tripartite (his first “under our constitutional division Hughes’ reason for ill-equipped in- the courts are activities), government’s powers,” the amendment Supra efficiency no executive functions. weight terest in carries meddle these Pickering balance. Id.5 at 1417-1418. the quotes Supreme also agree majority’s majority
Nor
I
with the
con-
can
Myers,
Patrol,
decision in Connick v.
“para-military”
clusion that the
as
Court’s recent
-
1684, 1692,
-,
75
must
103
organization,
be accorded considerable
(1983),
proposition
em-
for the
deference both
its decision that an
L.Ed.2d 708
relationships
es-
working
are
ployee’s first amendment activities have
close
“[w]hen
fulfilling public responsibilities,
caused
and in
its dis-
sential
exercising
dissension
to the
discipline
employee.6
degree
employer’s
cretion
such an
wide
of deference
However,
judgment
appropriate.”
works
law en-
is
The fact that
for a
Court,
went
passage,
in the same
agency
Supreme
is relevant
forcement
not the case when
strength
government’s
vis
on to state that such is
interest
It
her first amend-
has exercised
employee
vis
interests.
644,
(9th Cir.1982);
Quinn,
supra Dissenting Opinion
648
Monsanto v.
4. See
note 3.
990,
(3d Cir.1982); Tygrett v.
F.2d
998-99
supra Dissenting Opinion
5. See
note 3.
1279,
Barry,
(D.C.Cir.1980); Por
F.2d
Califano,
ter v.
592 F.2d
773-74
Cir.
majority
imply
6. The
should
seems to
that we
1979);
Elementary
Tempe
School
Bernasconi
apply
clearly
review
erroneous standard of
District,
(9th Cir.1977),
F.2d
cert.
“findings
to the
Patrol’s
fact.”
I cannot
denied,
L.Ed.2d
agree.
anything,
434 U.S.
98 S.Ct.
If
we should view the Patrol’s
majority
(1977).
agree with
that dissen
self-serving
exculpatory
I
after-the-fact
state-
skepticism.
proper
certainly
ments
exist in
“G.” I disa
course this
sion
did
however,
apply
clearly
gree,
court
take is
errone-
should
must defer to the Pa
we
ap
ous standard
review to
trier-of-fact’s
judgment
transfer was
trol’s
case,
findings.
I
sense,
Because there are none in this
i.e.,
propriate
in a constitutional
would remand the
to the
court.
case
district
activities
first amendment
caused
many
Also
cases have held that
in the area
disabling effect of the
dissension and that
rights
first amendment
the court
view the
must
outweighs
dissension within
government’s
justifi-
self-serving after-the-fact
rights.
also Con
first amendment
skepticism.
of its actions with
cations
studied
Myers, - U.S. -,
nick v.
103 S.Ct.
so,
doing
must
their
courts
exercise
708, and the
1692 n.
75 L.Ed.2d
discussion
independent
judgment
sig-
constitutional
holding
of the Connick
infra at 1434-1435.
case.
nificance of
historical
facts of the
government’s
And
in no event
claim
Dissenting
supra
Opinion note 3.
7. See
Pickering
dissension to be determinative
See,
Duval,
e.g.,
balance.
Peacock v.
*26
rights
ment
in a manner which “more
Thomas,
sub- Barrett v.
ing
Patrol,
by members of the
including Lt.
with Trieman that concerned Hughes’ supe-
Elmore, and for instituting investigations
riors.
supra Dissenting Opinion
See
possible
about
large
drug
scale
smuggling
of the first
importance
1432-1433.
in the area. These are certainly matters of
amendment
right
political
association
concern,
public
quite dissimilar to Connick’s
lightly regarded.
should not be so
Thus,
questionnaire.
although
majority
majority’s
conclusion also underva-
is correct in its assertion that
the Patrol
Hughes’ investiga-
lues the social worth of
large degree
does have a
of discretion over
alleged
tions into the
misconduct of his
personnel matters,
its
the Patrol may not
superiors. Hughes’ activities were not
abuse that discretion to stifle the first
merely internal or personal squabbles with
amendment rights of its
Bar-
employees.
his superiors, but rather were aimed at mat-
Thomas,
rett v.
1199-1200
(5th Cir.1981).
significant public
ters of
concern.
Con-
And it is
See
particularly within
nick v.
judiciary’s
Myers,
ken
1689-91.
stop
the executive
Hughes’ investigations
from
of Lt. Elmore’s son’s
exercising
powers
its
in an unconstitu-
Madison,
drug
tional
involvement
relate
Marbury
solely
manner. Cf.
did not
(1 Cranch) 137, 175-76,
They
1436
superiors.
their
speaking against
Id. at 1690-
fear of
of misconduct.
guilty
ciáis are
91;
Siehenmann,
pressured
been
into
troopers
v.
The
have
Ateherson
Cir.1979).
member
free
1058,1063 (8th
Hughes’
longer
and no
feel
compliance
sheepish
unique
him in a
places
per-
in the Patrol
all
ship
equally against
the law
to enforce
expose
acts of
investigate
position
156-57, 160, 171, 173-74, 177.
sons. Tr. at
such,
the Patrol. As
misconduct within
Indeed,
officials have
at
least
two state
activities deserve
Hughes’
investigatory
means to
the
transfer as a
used
retaliatory
from
ac
protection
substantial
157, 320-21, 391. The
dissent. Tr. at
quash
Pickering,
Patrol.
391 U.S.
by
tions
the
effect on the oth-
ignored
has
majority
1736;
Atcherson v. Sieben
S.Ct.
first
weighing Hughes’
troopers
er
(“[T]he
at 1063
creation
mann, 605 F.2d
Instead,
opinion
the
amendment
interests.
as to si
cannot be so feared
disharmony
activi-
Hughes’
that because
in effect holds
public
would inform the
lence the critic who
dissension,
facto the Pa-
ipso
ties caused
officials.”);
by public
of this misbehavior
Yet, the first
prevail.
trol’s interests must
Redish,
Free
Speech,
The Value of
not
“requires
government
amendment
(1982).
611-16
U.Pa.L.Rev.
speech
employee
show that certain
just
view,
that
Hughes’ first amendment
but to show
my
injures
government,
In
course,
quite
injury
interests are
substantial. Of
actu-
preventing
the benefits of
federal courts should not underestimate
of free
outweigh
profound
benefits
ally
em
that can be created
disruption
Califano,
society.”
in this
Porter
speech
But
first amendment activities.
ployee’s
effect of
chilling
Supra General Inspector General Army and the Office of repeatedly emphasized This court has also These letters Washington, not review sensitive D.C. and will cannot See, treatment he received e.g., de novo. Na- about the complained amendment issues States, processing 702 F.2d Freund in Major from General thanson v. United Norton, Cir.1983); “buzzing” charge. Brockell v. defense (8th Cir.1982). primary reason com- also made an oral The Guardsman evidence in explored Hughes’ I have the National Guard why to an official of plaint there still re- such detail is to show Bureau. the facts. The sharp dispute mains a applied Subsequently, Guardsman thoughtful reading after a
majority, Groton, with a battalion promotion *29 record, version of adopted the Patrol’s was reviewed application His Connecticut. truth, I presented have (the man he Freund by Adjutant General way this only version of the truth. The in his letter cam- to and about complained dispute can be resolved is to have the trier “buzzing” the submarine paign to clear necessary credibility fact make the deter- of was denied charge). application fact. I must findings minations and depot told Guardsman Groton that this does not mean that I emphasize the bat- appointed not be would “facts” as and true. accept Hughes’ proven from with- policy promoting had a talion subjective. system Truth is In our trial sued. in. The Guardsman resolution, “objective” dispute official the first The district court dismissed truth is a matter for the trier-of- factual a for failure to state charges fact to decide. I would leave the initial said the Guard claim. The district court truth finding “objective” task of factual rejected appli- have the Guardsman’s would the district A in this case to court. court speech to his due regard cation without credibility to make appeals just able its from within. On policy promotion from a determinations faceless record. See re- reversed and appeal Second Circuit Airways Authority British Board v. Port amendment issue. The manded on the first York, Cir.1977) (2d New 558 F.2d though even there was court stated that (“Basic require that a tenets of fairness policy strong indication that Guard’s appellate federal court should not consider Mt. within would meet the promoting from involving questions an of fact not issue test, the Guards- Doyle rebuttal Healthy below.”). The be- great disparity resolved to offer opportunity an man still deserved majority’s reading tween the of the record whether his internal commu- proof his as to my reading highlights record speech. This was protected nications were truism. was a mem- though plaintiff true even Recently, grappled the Second Circuit military organization ber of with a similar situation. In MacFarlane v. organization of that spoke about members Grasso, (2d Cir.1982), a Nation- organization. of that to other members al claimed that he was denied Guardsman that the Guardsman The court further held con- appointment (promotion) as a stock first amendment free- give up did not his Army trol officer in the Connecticut Na- and that he joining military upon doms ac- Among tional other causes of Guard. court to have the district right had the tion, alleged the Guardsman that the denial alle- his first amendment findings make for his exercise of his was in retaliation Grasso, 696 MacFarlane v. gations. See rights. first amendment It seems that 224-25. F.2d at guardsman wrote letter to Governor Gras- situation exists analogous An charges himself defending so MacFarlane, Hughes, a case. As in present during nuclear he “buzzed” a submarine organization, a para-military member of He also addressed letters training flight. about fellow disparaging made remarks Major subject on the same to a General to other Guard, organization Inspector members of that Freund within the As in organization. members of that
MacFarlane, allegations should be
aired and resolved in the first instance Hughes’ allegations
the district court. in retaliation for
his transfer was ordered investigatory association and political also deserve first amendment
activities Accordingly, fact. I
scrutiny by the trier of previous precedent
would adhere to our
remand this case to the district court of fact on the first amendment
findings v. Norton,
issue. Brockell 688 F.2d at
593-94. *30 TITLE COMPANY AMERICAN
FIRST First Ameri- DAKOTA and
OF SOUTH Company of South
can Title Insurance
Dakota, Appellants, LAND TITLE ASSOCI-
SOUTH DAKOTA
ATION, Abstracter’s South Dakota Examiners, Land
Board Black Hills Company, Mur- Dennis O.
and Abstract Security Compa-
ray, Land and Abstract Rhodes, County
ny, M. Fall River Glen Clay, Company, E. Cus-
Abstract Charles Gould, Company, Betty J. ter Title Company, County Abstract
Haakon Roe, Emerson, Wayne and Charles
Keith
Nass, Appellees. 82-1753.
No. Appeals, Court of
United States Circuit.
Eighth March
Submitted 11, 1983. August
Decided 9,1984. Denied Jan.
Certiorari 104 S.Ct. notes ties could not majority correctly proof. The elusive agree that the dissension I would decision. say that dissen- be absurd that it would Hughes’ first amend- by not caused before the deci- have arisen sion could not Rather, the dissension ment activities. was made. Hughes transfer sion to Hughes, to transfer caused the decision however, testimony offered Hughes, decision to transfer and the that indeed no dissension troopers his fellow activi- first amendment Hughes’ based on from until Lt. Elmore returned up did exist important This is an distinction ties. with the news that City Jefferson my opinion difference of is the basis for The is transferred. evidence was to be also as- majority The majority. with the such circumstances it conflicting. simply whistle- was not fired for serts that whom to district court decide for the told about blowing anyone because he never fact be- a trier of decides believe. Until is to Hughes’ evidence investigations. other, I cannot so tween one side or the Hughes, he told According to contrary. testimony favoring easily dismiss McKee, Hickman, member Lt. and a Capt. when the dis- Hughes’ position, especially investi- about his of the Crime Commission Supt. specifically disbelieved trict court claims that majority The also gations. Hughes’ trans- explanation Whitmer’s was unrelated to his Hughes’ disciplinary measure. fer was not be- Airport investigation View Mountain never interfered Hughes’ superiors cause to First Amendment Ac- B. Unrelated encouraged even investigation with the tivities Besides, did not Hughes’ investigation it. factual conclusion majority’s The second reasoning illegal activity. This any uncover amendment “whis- Hughes’ was that first punished that he was Hughes’ point misses wholly activities were unrelat- tle-blowing” legitimate investigation initiating ed to the decision to transfer him. politician, a local angered which Whit- majority point Supt. makes the for what necessarily Maj. mer Hoffman did not even know majority, how- might have revealed. allegations superiors that his about ever, accept Supt. chosen to Whitmer’s or ticket- covering up police brutality were com- legislator’s testimony that state knew fixing. But Lt. Elmore about nothing had to do plaints Hughes’ involvement these incidents and that this Again, my opinion it is transfer. spoke Supt. Whitmer about trier of fact. be made choice should It was at that “controversial activities.” substantially under- Finally, majority meeting Supt. Whitmer told Elmore impact estimates “problem” would be re- activities on the Pa- political amendment Besides, Supt. Whitmer testified solved. merits activity type trol’s decision. This delegated responsi- that he had much of the protection. considerable first