C. D. (Denny) Abbott v. William F. Thetford, Individually and in His Official Capacity as Judge of the Family Court of Montgomery County, Alabama

529 F.2d 695

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 21, 1976
• Docket: 73--1894
• Status: Published

Opinions

JOHN R. BROWN, Chief Judge:

On November 17, 1972, C. D. (Denny) Abbott, then Chief Probation Officer of the Circuit Court of Montgomery County, Alabama, Domestic Relations Division, filed a civil action in Federal District Court on behalf of three minor black children charging that racially discriminatory admission policies were maintained by the Alabama Department of Pensions and Security and six homes for dependent and neglected children. In response to this suit, William F. Thet-ford, Judge of the Juvenile Court for which Abbott was Chief Probation Officer, discharged Abbott on grounds that his action in filing the suit violated an express order of the Judge prohibiting the filing of lawsuits by staff employees. Furthermore, the Judge felt that Abbott’s continued employment as Chief Probation Officer would disrupt the efficient operations of his Court. Abbott challenged his discharge in Federal Court bringing a complaint pursuant to 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 1343(3). The District Court held a lengthy hearing, and on February 20, 1973, rendered an opinion dismissing Abbott’s complaint. We conclude that the District Court improperly dismissed Abbott’s complaint and reverse and remand.

Montgomery County’s Juvenile Court is incorporated within the Domestic Relations Division of the Montgomery Circuit Court. Judge Thetford presided over the Juvenile Court and for nine years prior to his discharge, Denny Abbott had served as Chief Probation Officer. Most of the Juvenile Court’s caseload is received from the Youth Aid Division of the Police Department. The Juvenile Court attempts to place dependent and neglected children in children’s homes throughout the state, but the Court must depend heavily on the Alabama Department of Pensions and Security, or Welfare Office, which has primary responsibility for such placement. Private homes, mostly church operated and dependent on voluntary contributions for financial support, are the major resource for the placement of the children.

In 1972 most of these children’s homes throughout Alabama remained segregated by race. There were two children’s homes in Montgomery County, Brant-wood, an all-white institution, and Our Lady of Fatima, an all-black home operated by a Catholic priest.¹

As Chief Probation Officer, Abbott worked closely with the other members of the probation staff.² Abbott also served as the link between Judge Thet-ford and the probation staff, thereby necessitating a direct working relationship with Judge Thetford. While Abbott was employed on the merit system, and not at the discretion of Judge Thetford, he worked for the Judge and a degree of cooperation was necessary for efficient court operation.

The 1969 Lawsuit

The first serious trouble between Judge Thetford and Abbott occurred in 1969. In January of that year, Abbott as next friend filed a class action suit³ in Federal Court on behalf of five black children then being held in the detention facilities of Montgomery County. The suit sought to improve conditions at the detention facility and correct the mistreatment of black children at the Mt. Meigs Industrial School for Delinquent Negro Boys.⁴

Judge Thetford responded unfavorably to the lawsuit and suspended Abbott for 15 days for his “deliberate and willful disobedience of instructions.” Abbott explained his actions in a letter to Judge Thetford prior to his suspension:

“I would like to assure you that my action in Federal Court was, in no way, intended to reflect upon you or the court. I am, indeed, sorry if you feel that such action was a betrayal of your trust in me. I feel that I have not betrayed my conscience or the young people of Montgomery County.”

Abbott returned to his position as Chief Probation Officer at the termination of his suspension and no further conflicts occurred over the 1969 lawsuit.

Judge Thetford’s 1972 Order

On September 29, 1972, Judge Thet-ford called a meeting in his office with the supervisory probation personnel including Abbott, Mr. Franklin and Ms. Goodwyn. Judge Thetford testified at the District Court hearing that he called the staff meeting since his suspicions of possible litigation were aroused when he was informed that Abbott had been seen frequently visiting the office of a well-known civil rights lawyer in Montgomery. An oral directive was given by the Judge concerning the filing of lawsuits by the supervisory personnel or other staff members. Abbott relayed this directive on to the other staff members. Since there was no written directive issued, varying versions of the Judge’s instructions were recalled at the District Court hearing.⁵

Abbott testified that to the best of his recollection Judge Thetford had instructed the three staff members that “no personnel at the Montgomery County Youth Facility would aid, assist in the filing, or file any lawsuit in any court regarding any matter.” In his complaint, however, Abbott recounted that Judge Thetford’s oral directive only admonished that “no suits [are to be] filed by any personnel of the Montgomery County Youth Facilities without my prior knowledge and approval.”

1972 Lawsuit

On November 17, 1972, Abbott filed a class action,⁶ in Federal District Court, on behalf of three dependent and neglected black children seeking to integrate six all-white child-care institutions and seeking to require the Alabama Department of Pensions and Security to create more resources for black children. In no way did the suit challenge Judge Thetford’s policies or official actions as judge of the Juvenile Court. Prior to filing the suit, however, Abbott did not consult Judge Thetford concerning the substance of the suit. On November 22, 1972, Judge Thetford notified Abbott by letter that he was discharged, effective immediately, for his action in filing the lawsuit.⁷ Abbott brought this present action as a “motion for supplemental relief” on the class action which he had filed on November 17, 1972. The District Court treated the motion as a new and separate claim.

Constitutionality Of The Judge’s Order

We must first determine whether Judge Thetford’s oral directive could constitutionally prohibit the probation personnel from filing lawsuits. The right to file a law suit is a form of communication embraced by the First Amendment which “protects vigorous advocacy, certainly of lawful ends, against governmental intrusion.” N.A.A.C.P. v. Button, 1963, 371 U.S. 415, 429, 83 S.Ct. 328, 336, 9 L.Ed.2d 405, 416.

In Button the State of Virginia imposed criminal penalties for (1) advising persons of when their legal rights were infringed, (2) referring these persons to attorneys for legal assistance, and (3) the rendering of such legal assistance. The Supreme Court held that the State’s interest in regulating barratry did not justify an unconstitutional intrusion on the NAACP’s freedom of expression and association. Freedom of access to the Courts is necessary since “under the conditions of modern government, litigation may well be the sole practicable avenue open to a minority to petition for redress of grievances.” 371 U.S. at 430, 83 S.Ct. at 336, 9 L.Ed.2d at 416.

Clearly Abbott and all the other probation personnel possess the right of free access to the courts for purposes of prosecuting a lawsuit. But the exercise of this acknowledged right to litigate has its boundaries as does the exercise of other First Amendment freedoms by state employees. The state has a legitimate interest in promoting the efficient operation of government and “it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Pickering v. Board of Education, 1968, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811, 817.

In regulation of First Amendment freedoms of state employees, a balance must be reached between the interest of the state and the interest of the employee as a person. Pickering v. Board of Education, supra, 391 U.S. at 568, 88 S.Ct. at 1734, 20 L.Ed.2d at 817; Battle v. Mulholland, 5 Cir., 1971, 439 F.2d 321, 324. It is important to remember in striking this balance that the theory espousing the right of the state to impose any conditions, regardless of how unreasonable, on the freedoms of state employees has been rejected. Keyishian v. Board of Regents, 1967, 385 U.S. 589, 605-606, 87 S.Ct. 675, 684-685, 17 L.Ed.2d 629, 642. Furthermore, the Court has ensured the right of state employees to exercise their First Amendment rights in matters of public concern even though they may be directed at their supervisors who do not wish to contend with the employees’ expressions of opinion. Pickering v. Board of Education, supra, 391 U.S. at 574, 88 S.Ct. at 1737, 20 L.Ed.2d at 820; Tinker v. Des Moines Independent Community School District, 1969, 393 U.S. 503, 511-513, 89 S.Ct. 733, 739-740, 21 L.Ed.2d 731, 740-741; Burnside v. Byars, 5 Cir., 1966, 363 F.2d 744, 749. See United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 1973, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796, in which the Supreme Court struck the balance in favor of governmental restraints of employees’ partisan political activities by upholding the constitutionality of the Hatch Act, 5 U.S.C.A. § 7324(a)(2).

In weighing the balance between Judge Thetford’s oral directive and the restriction it placed on the Juvenile Court employees’ right to litigate, we must consider the purpose to be achieved by the directive in balance with the degree of restriction placed on the Juvenile Court staff’s exercise of their First Amendment freedoms. Judge Thetford testified that he issued the order to preserve the effective operation of the Juvenile Court. To the best of his recollection Judge Thetford testified that he told Abbott, Mr. Franklin and Ms. Good-wyn at the September meeting that he “wanted no suit filed by any member of our staff which would affect the work of the Court without my knowledge and approval.” In his letter of November 22, 1972 (note 7, supra) discharging Abbott, Judge Thetford reasoned that Abbott’s action in filing the lawsuit against the six children’s homes and the Department of Pensions and Security was in “flagrant and willful disobedience of orders.” In testimony Judge Thetford explained that failure to obtain his approval for filing the lawsuit was partially the reason for discharging Abbott, the other reason being that it “affected the operation of my Court.”

We have already discussed the First Amendment freedom to litigate which state employees possess. Judge Thet-ford’s order restricted the exercise of this right by the staff of the Juvenile Court. For purposes of resolving the constitutionality of the order, we accept Judge Thetford’s own interpretation of his order. During oral argument before this Court there was a great deal of preoccupation with facial overbreadth of the order as opposed to unconstitutionality as applied. On this record we feel no need to enter into this find distinction. If the order left Judge Thetford with the subjective determination as to whether a lawsuit affected the operation of the Juvenile Court then the order would be facially overbroad. Whether a lawsuit interfered with the Court operations must be determined on objective standards. There must be sufficient precision in any rule restricting First Amendment freedoms. Hobbs v. Thompson, 5 Cir., 1971, 448 F.2d 456, 472.

But for our purposes it is enough to hold that the order was unconstitutional as applied since the record is devoid of any evidence that the Juvenile Court was in any way interfered with by Abbott being a party to an anti-discrimination lawsuit. The record indicates that the overriding reason for the issuance of the order and subsequent discharge of Abbott was Judge Thetford’s subjective dislike of the suit filed. This conclusion is reflected in the findings of fact contained in the District Judge’s Memorandum Opinion. The District Judge in analyzing the different interpretations of Judge Thetford’s order found that “all concerned understood that the type of suit intended to be prohibited was any suit that the Judge felt would affect the operation of the Court.” (Emphasis added).

The proper test for determining the constitutionality of the order must be whether from an objective viewpoint the exercise of First Amendment rights disrupts and materially affects the whole operative procedures of the court. Again we stress that nothing in the record shows any disruption or interference occurred as a result of Abbott filing the 1972 lawsuit. It can be argued that Judge Thetford’s discharge of Abbott only five days after the suit was filed preempted any disruption.

But the record is also devoid of any evidence that disruption would likely have occurred as a result of the lawsuit. Following the 1969 lawsuit filed by Abbott, the court operations suffered no disruption. There was no reason reflected by this record to support the belief that any other effect would result from the 1972 lawsuit. The mere fear or apprehension of a disturbance is not enough to justify denial of the freedom of expression. Tinker v. Des Moines Independent Community School District, 1969, 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731, 739; Battle v. Mulholland, 5 Cir., 1971, 439 F.2d 321, 324. While Judge Thetford would not be required to have delayed discharging Abbott until disruption to the Juvenile Court’s operations actually occurred, he must have shown sufficient facts upon which he could have reasonably forecast disruption. Shanley v. Northeast Independent School District, Bexar County, Texas, 5 Cir., 1972, 462 F.2d 960, 970-71. Since the discharge of Abbott was based on nothing more than Judge Thetford’s subjective apprehensions of disturbance to the Juvenile Court, we conclude that the discharge was unwarranted and in violation of Abbott’s First Amendment freedoms.

Reinstatement

While the equitable relief of reinstatement of state employees discharged in violation of their constitutional rights has been primarily used in teacher dismissals, the Courts have established the principle that reinstatement is a necessary element of an appropriate remedy in wrongful employee discharge cases, e. g., Sterzing v. Ft. Bend Independent School District, 5 Cir., 1974, 496 F.2d 92, 93; Lee v. Macon County Board of Education, 5 Cir., 1971, 453 F.2d 1104, 1114; Ramsey v. Hopkins, 5 Cir., 1971, 447 F.2d 128; Rauls v. Baker County, Georgia Board of Education, 5 Cir., 1971, 445 F.2d 825, 826; Harkless v. Sweeny Independent School District, 5 Cir., 1970, 427 F.2d 319, 324, cert. denied, 1971, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439. Judge Thetford opposed any order reinstating Abbott to his former position as Chief Probation Officer with the Juvenile Court. Judge Thetford argued that the Chief Probation Officer must be a person loyal to the Judge with whom the Judge could work in an amiable relationship. A person who would disobey direct orders of the Judge would, therefore, seriously handicap the operations of the Court.

But in assaying this we must bear in mind the nature of the order which the employee disobeyed. The law cannot tolerate the result of discharge on the ground of intrusion upon the close working relationship required when the cause is the disobedience of an order constitutionally impermissible facially, in part, and in application.

While we share the concern of Judge Thetford that reinstatement might revive old antagonisms, every case of reinstatement raises the possibility of ill feelings. “Relief is not restricted to that which will be pleasing and free of irritation.” Sterzing, supra at 93.

Admittedly, the 1972 lawsuit was filed against the chief resources of the Juvenile Court but Abbott never challenged any of Judge Thetford’s policies or rulings, administrative or judicial, in the lawsuit. The suit sought to change the policies of the Alabama Department of Pensions and Security and private children’s homes over which Judge Thetford had no control. These policies of other agencies were, it is true, of significant operational consequence as Judge Thetford performed his important duties. But to attack them — also on the ground of the Constitution — was not an attack on the Judge or his Court or both. Judge Thetford can require much in the loyalty of his Chief Probation Officer and other functionaries. But the price cannot be an outright prohibition of constitutionally based suits that do not put the employee — suitor in defiance or criticism of his superior’s decisions on matters other than, of course, the ban on litigation. Since Abbott’s actions did not do that and antagonisms to further association must be attributed to feelings generated by the purposeful refusal to obey an order which is constitutionally unsupportable, reinstatement is equitably required.

Since the questions of backpay and attorney’s fees present problems of the Eleventh Amendment, we remand for consideration in light of Alyeska Pipeline Service Co. v. Wilderness Society, 1975, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141; Edelman v. Jordan, 1974, 415 U.S. 651, 659, 94 S.Ct. 1347, 39 L.Ed.2d 662, 670; Gates v. Collier, 5 Cir., 1975, 522 F.2d 81; Newman v. Alabama, 5 Cir., 1975, 522 F.2d 71; as well as the liability for damages, backpay, etc. in light of Muzquiz v. City of San Antonio, 5 Cir., 1976, 528 F.2d 499 [1976] (en banc), aff’g and rev’g in part, 1975, 520 F.2d 993; Warner v. Board of Trustees of Police Pension Fund, 5 Cir., 1976, 528 F.2d 505 [1976] (en banc), rev’g, 1975, 522 F.2d 1384.

Reversed and remanded.

1 . In 1972 Our Lady of Fatima home closed and an effort was begun by Judge Thetford to establish a new home for black children.

2 . The staff included Ms. Goodwyn, the Intake Officer, Mr. Franklin, the Detention Director, and four probation officers.

3 . Stockton v. Alabama Industrial School for Negro Children, Civil No. 2834-N (M.D.Ala., filed January 23, 1969).

4 . The United States Justice Department subsequently intervened in Abbott’s behalf and a consent decree was signed promising reform of the conditions at Mt. Meigs.

5 .At the District Court hearing Mr. Franklin testified that:

“To the best of my recollection the judge said he didn’t want us or any employee of the youth facility to file any suit or assist in the filing of any suit that would affect the operation of the Court.”

Ms. Goodwyn also gave her recollection of the instructions which she passed on to her staff concerning Judge Thetford’s order:

“I explained to each one of the intake officers individually that Judge Thetford had stated to the supervisors of the court that there would be no lawsuit filed by anyone connected with the court that would affect the operation of the court, nor were we to assist in the filing of any suit that would affect the operation of the court without his knowledge.”

Yet Ms. Goodwyn’s initial recollection when she was deposed was somewhat different:

“He said that he did not want anybody connected with the family court or youth facilities to be a party to the filing of any sort of lawsuits or assist in the filing of any lawsuits in any way.”

6 . Player v. State of Alabama Department of Pensions and Security, Civil No. 3835-N (M.D.Ala., filed November 17, 1972).

7 . Judge Thetford explained his reasons for discharging Abbott in his letter of November 22, 1972.

“In yesterday morning’s paper I read that as Chief Probation Officer of the Montgomery County Family Court, you have filed suit against numerous persons, including, but not limited to, the Brantwood Children’s Home, the Baptist Home at Troy, the Methodist Children’s Home at Selma, and the State Department of Pensions and Security. This, of course as you realize, was without prior consultation with me, and this suit was filed without either my knowledge or approval.

In view of your flagrant and wilful disobedience of orders, you are hereby discharged as Chief Probation Officer, Montgomery County Family Court. This discharge is effective immediately.”