Connealy v. Walsh (412 F. Supp. 146, 1976)

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL JUDGMENT FOR DEFENDANT ON ALL COUNTS

WILLIAM H. BECKER, Chief Judge.

This is a civil rights action by a former employee of the Juvenile Court of the Sixteenth Judicial Circuit of Missouri (Jackson County) (hereinafter “Juvenile Court”) under the Civil Rights Act of 1871, Section 1983, Title 42, United States Code. Plaintiff contends that her discharge for failure to remove a “McGovern” bumper sticker from her automobile, pursuant to Section XIII of the Juvenile Court Personnel Policies which prohibits employees of the Juvenile Court from involvement in “partisan political activities,” violated her First and Fourteenth Amendment rights of freedom of speech and to procedural due process. Plaintiff seeks declaratory ,and injunctive relief, reinstatement, back pay, and attorneys’ fees.

On August 26,1975, an order was entered narrowing the issues and establishing certain facts as undisputed pursuant to Rule 56(d) of the Federal Rules of Civil Procedure. At that time, the remaining issues to be tried were: (1) whether the bumper sticker prohibition promotes state interests which outweigh plaintiff’s First Amendment rights; and (2) whether plaintiff possessed a “property” interest in her position, or was deprived of “liberty” by the manner of her discharge, which would entitle her to procedural due process rights not accorded her.

On March 5, 1976, a plenary evidentiary hearing was held. The parties have submitted proposed findings of fact and conclusions of law. At the Court’s request, the parties have also submitted post-trial briefs on the issue of the state interest in preserving a nonpartisan judiciary.

Based upon the undisputed facts, the evidence presented at the hearing, and the briefs submitted by the parties, the following findings of fact and conclusions of law will be entered.

I. Findings of Fact.

On June 30, 1969, plaintiff was employed as a social worker by the Juvenile Court. Her first assignment as a deputy juvenile officer was supervision of children under six years of age who were available for adoption or who had been removed from their parents because of neglect. In March, 1970, plaintiff was assigned to a program called “Children in Need of Care” which was designed to make the community aware of the availability of the children plaintiff supervised. On February 1, 1972, plaintiff was transferred to the Drug Service Unit of the Juvenile Court and assigned to the “Youth in Need of Care” program where she worked until her discharge on October 18, 1972.

Plaintiff’s duties in the Drug Service Unit consisted of acting as a probation officer for persons placed on probation for drug offenses by the Juvenile Court. The ethnic backgrounds of the probationers under plaintiff’s supervision were varied. Part of plaintiff’s duties consisted of holding weekly meetings or interviews with the probationers, their parents, and occasionally their acquaintances to discuss their problems. She was also available for counseling at any time for cases of emergency. At all times, plaintiff’s job performance was satisfactory or better.

Usually, plaintiff went to her probationer’s home, school or job for the weekly conference or interview and investigation. As part of her employment, plaintiff was required to provide an automobile at all times during her hours on duty for transportation to places where she interviewed or conferred with her probationers or made investigations, and to furnish proof of adequate automobile insurance coverage. Plaintiff did provide an automobile and did furnish the requisite proof of automobile insurance coverage. Plaintiff was entitled to park this automobile in the Juvenile Court parking lot. Several persons who were not employees of the Juvenile Court were also permitted to park in the same lot. Plaintiff was reimbursed by the Juvenile Court. for use of her automobile in the course of her employment at the rate of ten cents per mile.

Defendant Walsh was at all times material the Director of Juvenile Court Services of the Jackson County Juvenile Court. In that capacity, defendant was charged with the administrative duties of hiring and discharging employees of the Juvenile Court.

On January 1, 1969, the Sixteenth Judicial Circuit Court en bane issued an order entitled “In the Matter of the Administrative Operation of the Court — Juvenile Court Personnel Policies.” Section IX of the order, entitled “Separation from Employment,” provided in pertinent part:

“B. Dismissal: Dismissal action shall be initiated by the Director, after notification to the Juvenile Judge.

“1. Reasons for Dismissal of any Employee:

“Reasons for dismissal shall include: Physical or mental disability . . . ; incompetence; insubordination; misconduct, such as a moral or criminal offense . . . ; or such other cause that reflects negatively on the work of the Juvenile Court.

“2. Notice

“Two weeks notice of dismissal and the reasons for such action shall be given to permanent employees in writing. Immediate removal from the Juvenile Court can be required by the Director for good cause. .

“No dismissal should take place without a personal discussion with the Director (or delegate) and the subject employee.”

Section XIII, entitled “Political Involvement,” provided:

“The Juvenile Court is nonpartisan. No employee of the court shall be involved in any way in partisan political activities. Active or indirect partisan political involvement could result in employment termination. Each employee is strongly encouraged to vote his political convictions at every election.”

Section XIII is based on Article 5, Section 29(f) of the Missouri Constitution which has been consistently interpreted by the Sixteenth Judicial Circuit Court to apply to all court employees.

In May, 1972, Circuit Judge Robert A. Meyers of the Sixteenth Judicial Circuit Court, then in charge of the Juvenile Division of that Court, brought to defendant’s attention several partisan political bumper stickers on automobiles parked in the Juvenile Gourt parking lot. Judge Meyers requested defendant to issue a memorandum to Juvenile Court employees concerning the bumper stickers. On May 22, 1972, defendant prepared and circulated a “Memorandum to All Staff,” which provided in pertinent part:

“No staff member may be involved in any political activities of any sort. That includes bumper stickers. Participation will lead to immediate termination. We are precluded by law for such involvement. We encourage everyone to support their convictions by voting but they may not be involved in active political participation of any kind.”

Also in May, 1972, plaintiff was in California during that state’s presidential primary campaign. While in California, plaintiff obtained and placed on her car a “McGovern” bumper sticker. When she returned following her vacation, she was advised by defendant of the memorandum prohibiting bumper stickers and Judge Meyers’ order. She was informed that her employment would be terminated if the bumper sticker was not removed. After the conversation, plaintiff agreed to, and on June 9,1972, did, remove the bumper sticker.

Between June and October, 1972, plaintiff conferred with several legal aid attorneys and senior law students concerning the validity of the bumper sticker prohibition. She was advised that the prohibition was invalid and referred to an attorney who also advised her that the prohibition was illegal.

On October 13, 1972, plaintiff’s counsel wrote defendant a letter in which he stated that he had been retained by plaintiff; that it was his opinion “ . . . that the State law does not prohibit the expression of opinion by State employees”; and that he was advising plaintiff to replace the “McGovern” bumper sticker on her automobile. On October 16, 1972, defendant replied by letter stating that plaintiff was an employee of the Juvenile Division of the Sixteenth Judicial Circuit of Missouri to whom applies Article 5, Section 29, of the Missouri Constitution; that the Circuit Court en banc and the Judge of the Juvenile Court had indicated that they would not permit any engagement in partisan political activities; that plaintiff had been so advised; and that violation of the directives of the Circuit Court en banc and the Judge of the Juvenile Division would result in termination of employment.

Sometime prior to October 16,1972, plaintiff placed a new “McGovern” bumper sticker on her automobile because, in her opinion, display of a “McGovern” bumper sticker did not constitute “partisan political activity.” On Wednesday, October 18,1972, plaintiff came to defendant’s office and told defendant the bumper sticker had been replaced. At plaintiff’s insistence, defendant went to the parking lot and observed the sticker. After requesting plaintiff to remove the sticker and warning her that she was subject to discharge for failure to remove it, and after plaintiff refused to remove the sticker, defendant informed plaintiff she would be discharged.

While in the parking lot, plaintiff mentioned that two other employees of the Juvenile Court Services had partisan bumper stickers on their automobiles. After being reminded of the bumper sticker prohibition by the defendant that day or the day after, both employees removed the stickers. On October 19, 1972, defendant issued an “Interoffice Memorandum” concerning “Involvement In Partisan Political Activity” which stated that persons who were not employees of Juvenile Court Services would not be permitted to use the Juvenile Court Services parking lot if their automobile had a partisan political bumper sticker attached to it.

Ón October 20, 1972, plaintiff’s counsel wrote defendant a letter protesting plaintiff’s discharge and requesting invocation of available appeal procedures at which plaintiff could be represented by counsel. On October 26, 1972, defendant confirmed by letter to plaintiff that she had been discharged effective October 18, 1972, with two weeks notice from that date with pay.

On November 7, 1972, defendant delivered to plaintiff’s counsel a copy of the January 1, 1969, order of the Sixteenth Judicial Circuit which contained the Constitution of the Personnel Practices Committee of the Juvenile Court, and appeal procedures following decisions of the committee. Section XVI of the order provided:

“In the event that any disagreement occurring in the area of personnel practices cannot be settled through discussions with the employees (sic) immediate supervisor, it may be brought to the attention of the Personnel Practices Committee for resolution. Final appeal shall be rendered by the Director with a review by the Juvenile Judge.”

However, plaintiff filed the complaint in this action on November 6, 1972. No administrative review or appeal proceedings were held or requested by plaintiff.

The foregoing facts are substantially uncontroverted. The two crucial factual issues which remain are, (A) the extent to which a partisan political bumper sticker w