O'LEARY v. Shipley

MURPHY, Chief Judge. In May 1986 Diane O’Leary, a deputy clerk of the Circuit Court for Carroll County, filed as a Democratic candidate in ¹⁹¹ the November election for Clerk of that Court, an office created by Article IV, § 25 of the Maryland Constitution. The office was then held by O’Leary’s ultimate supervisor, the incumbent Clerk, Republican Larry Shipley. Shipley prevailed in the election.

On the day of his investiture for a new four-year term as Clerk, Shipley informed O’Leary that he would not reappoint her as deputy clerk. 1 O’Leary, who had served as deputy clerk for ten years, subsequently filed a complaint in the Circuit Court for Carroll County against Shipley. She sought reinstatement and back pay, claiming that Shipley had wrongfully refused to reappoint her because she opposed him in the election. The complaint alleged that the Clerk thereby contravened By-law X of the Maryland Court Clerks’ Association, which prohibits the Clerk from refusing to employ or failing to promote “any individual because of race, sex, color, religion or national origin or political affiliation.” O’Leary’s complaint set forth excerpts from a memorandum which Shipley had written wherein he advised her that she would not be reappointed. According to the complaint, Shipley’s memorandum to O’Leary evidenced “retaliatory” intent as follows: “This is to confirm the meeting today with you and Joyce.

During the meeting I indicated that since the election, I have had to make certain decisions as to certain things, including personnel, for the best interest of the employees and the office. ¹⁹² “One of the decisions was whether or not to reappoint every one as Deputy Clerks. “I sincerely feel that under the present circumstances that we cannot continue to work together. Therefore, I advised you that I would not be reappointing you as a Deputy Clerk and that I would give you a couple of weeks, until December 12, 1986, to find other employment.” Shipley moved to dismiss the complaint. Citing Supreme Court cases on political patronage dismissals, Elrod v. Burns, 427 U.S. 347 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980), Shipley asserted that to prevail O’Leary was required to allege and prove that he had failed to reappoint her solely from a political patronage motive. Shipley maintained in his motion to dismiss that because he had reappointed several other deputy clerks who were Democrats, including some who had supported O’Leary in the election, O’Leary failed to make out a prima facie case under Elrod and Branti .

Shipley also maintained that the “political motive” emphasis which O’Leary placed on the timing of her failure to be reappointed—i.e., almost immediately after the election—was without foundation because this was the most convenient opportunity to replace any deputy clerks, regardless of the reason that replacement was deemed necessary. Responding to Shipley’s motion to dismiss, O’Leary agreed that the Elrod-Branti “sole motive” test was controlling; she claimed that these requirements were satisfied. The court denied Shipley’s motion to dismiss, and the matter went to trial. The only evidence presented in O’Leary’s case was her own testimony.

She stated that she had never received any complaints from Shipley regarding her work performance during her ten years of service as a deputy clerk. She described the election campaign as “agreeable ... almost uneventful____ I had five specific things, I think, that I wanted to challenge and nothing ever got to a personal nature because I don’t think that’s proper ¹⁹³ in politics.” Of the twenty or twenty-one deputy clerks in the office, she said that she was the only one not reappointed. On cross-examination she spoke of the issues which had been raised during the campaign: “I criticized hiring practices which I didn’t zero in on Mr. Shipley particularly. I just said that I would hire differently.

I would open hire instead of closed hiring ...[;] I feel that when you hire for a State job, you should be able to advertise. That would have been my selection versus going mouth by mouth to find out who was available____ Another issue I had was cross-training. Mr. Shipley does the way he wanted to, cross-training would have been my selection.” Asked on redirect why she raised these issues, she said: “I don’t see how you can campaign and get people’s attention without having some kind of a format, a platform. And if you just go along and say, ‘Ladies and Gentlemen, I agree with Mr. Shipley but put me in office,’ you’re not going to get a vote.” Shipley’s evidence was limited to his own testimony.

Asked what factors he considered when deciding whether to reappoint a deputy clerk, he said: “Job performance, their ability to get along with other people, how their presence in the office affects the other employees and how it affects the office as a whole.” With respect to O’Leary, Shipley testified that “there had been some problems for a year or so before the election with another employee that was constantly criticized by Diane [O’Leary], the way she did things in the courtroom, the way she performed her duties. There was another incident of another employee that they just couldn’t get along and it was a constant, well, the other employee almost quit, you know, several times.” Shipley further testified: “During the campaign ... I was criticized for the way I ran the office as far as hiring; there were remarks made, quoted in the newspapers that ... I was doing nothing, ¹⁹⁴ that I was moving slowly and, in fact, I turned money back to the State when I was offered money for computer systems which was false.

There were comments made and one of those sore spots with me was that I was, in essence, turning money over to the State that should be kept in Carroll County for the people of Carroll County. And we are under the budget, that was money in excess of our budget and that was money I had to turn back____ [0]ne of the final things that I considered was the day after the election Diane did not come into work.” Asked how he reacted to O’Leary’s remarks about his performance in the clerk’s office, Shipley said: “I took it very personal and ... it was false____ I think it was being done to mislead the public and that's why it upset me. And I just felt that under those circumstances ... I had to make a choice.” Shipley’s direct examination continued: Q. “[Y]ou said that you did not feel under the circumstances that you and the Plaintiff could work well together.

Could you explain a little bit more? A. “With what had happened for the year or two before the election with some of the employees, with what happened during the election with the comments that were being made, I just felt that we could not work together____ I try to work with the people and I don’t mind criticism if it’s constructive but I think when the motive is different than just helping me ... that’s why I object to it.” Shipley acknowledged that except for O’Leary he reappointed all other deputy clerks, including those that supported O’Leary. He stated that although he knew that two of these deputy clerks were Republicans, he was unaware of his deputy clerks’ political affiliations because “that’s never a question when we hire them and ... it doesn’t really bother me what their affiliations are.” He thought O’Leary was a Republican until she ran against him as a Democrat. On cross-examination Shipley testified that pri- or to the election he had been basically satisfied with ¹⁹⁵ O’Leary’s job performance, and that he had never brought any performance problems to her attention in writing.

He stated that he did have some conversations with her concerning certain problems with other employees. He also testified that O’Leary was unhappy with her last duty assignment, which kept her from the courtroom. The court entered judgment for Shipley; it said: “[T]he real essence of this case is was Mrs. O’Leary discharged for purely political reasons. And I find, based upon ... the preponderance of the evidence, that she was not discharged purely for political reasons.

The Court finds ... that there obviously were some problems in the office with some other employees, that Mrs. O’Leary was having some problems, she had been no longer in the court and she was out doing clerical work in the office and obviously dissatisfied____ I don’t believe that Mrs. O’Leary has brought forth sufficient evidence to show that ... Mr. Shipley discharged her for purely political reasons.” O’Leary appealed to the Court of Special Appeals. She contended that the Elrod-Branti “sole motive” test was not applicable to her case. Rather, she asserted, the appropriate test was that developed by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968) and its progeny, especially Mt.

Healthy City Board of Ed. v. Doyle, 429 U.S. 274 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977). Under these cases, according to O’Leary, once she proved that the exercise of her First Amendment rights was a motivating factor in the denial of her reappointment, the burden of persuasion shifted to Shipley to prove by a preponderance of the evidence that he would not have reappointed her irrespective of the exercise of her First Amendment rights. In O’Leary’s view the trial court committed error by applying the Elrod-Branti test, and thus a new trial was warranted. Prior to consideration of the appeal by the Court of Special Appeals, we granted certiorari on our own motion. ¹⁹⁶ I We first consider whether the theory on which this case proceeded at the trial level impairs review in this Court on the particular First Amendment grounds now advanced.

O’Leary’s complaint did not explicitly invoke the First Amendment; it was brought into the case by Shipley’s motion to dismiss, in which he asserted that the Elrod-Branti “sole motive” test was applicable and had not been satisfied. O’Leary seemingly accepted the test as controlling, and the case proceeded to judgment on this basis. O’Leary now asserts that a different First Amendment theory governs this case. Maryland Rule 8-131(b)(2) provides that when, as here, no prior appellate decision has been rendered, we will consider those issues which would be cognizable in a case on direct appeal.

On direct appeal we ordinarily do not decide points or questions not plainly appearing by the record to have been tried and decided by the trial court. Rule 8-131(a). On the present facts, however, the general question of the application of the First Amendment to O’Leary’s nonreappointment was tried and decided by the trial court, even though the question was not explicitly raised by O’Leary’s complaint. In the circumstances, we deem it appropriate, and not inconsistent with Rule 8-131, to consider the issue.

We do so notwithstanding the fact that on appeal O’Leary invokes a First Amendment theory different from that on which the case was decided below, for a necessary part of reviewing the correctness of the trial court’s constitutional adjudication is the determination whether the proper First Amendment theory was applied. II We must first decide whether the Elrod-Branti and Pickering-Mt. Healthy lines of cases state two different tests for two different factual situations. If they do, we must determine into which line of cases the present controversy falls. ¹⁹⁷ (A) In Elrod v. Burns, supra, the Supreme Court in a plurality opinion considered whether public employees alleging discharge solely because of partisan political affiliation stated a claim for deprivation of First and Fourteenth Amendment rights.

In that case the Sheriff of Cook County, Illinois, a Republican, was replaced by Richard Elrod, a Democrat. In accordance with an established practice of political patronage, Elrod promptly discharged several employees solely because they did not support and were not members of the Democratic Party and had failed to obtain the sponsorship of one of its leaders. In holding that the employees stated a valid cause of action, the Court reasoned that patronage dismissals compel political orthodoxy and restrain political associations, and thus are “ ‘at war with the deeper traditions of democracy embodied in the First Amendment.’ ” 427 U.S. at 357 , 96 S.Ct. at 2682 (quoting Illinois State Employees Union v. Lewis, 473 F.2d 561 , 576 (7th Cir.1972)). The Court stated that such dismissals (other than from policy-making positions) fall within the prohibition set forth in Perry v. Sindermann, 408 U.S. 593, 597 , 92 S.Ct. 2694, 2697 , 33 L.Ed.2d 570 (1972) that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.” Elrod, supra, 427 U.S. at 359 , 96 S.Ct. at 2682 .

In Branti v. Finkel, decided in 1980, the Court considered whether the holding in Elrod was limited to situations in which government employees are coerced into pledging allegiance to a political party or whether it also applies to a simple requirement that an employee be sponsored by the party in power. In that case two county assistant public defenders brought a civil rights action alleging that Branti, the newly appointed public defender, was about to discharge them solely because they were Republicans. The assistant public defenders sought and were granted an injunction by the federal district court on the basis of Elrod . On appeal Branti contended that Elrod should be ¹⁹⁸ read to prohibit only dismissals resulting from an employee’s failure to capitulate to political coercion.

Rejecting this notion, the Court stated: “[T]here is no requirement that dismissed employees prove that they, or other employees, have been coerced into changing, either actually or ostensibly, their political allegiance. To prevail in this type of an action, it was sufficient, as Elrod holds, for respondents to prove that they were discharged ‘solely for the reason that they were not affiliated with or sponsored by the Democratic Party.’ ” 445 U.S. at 517 , 100 S.Ct. at 1294 . Almost a decade before Elrod was decided, the Supreme Court in Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), considered the application of the First Amendment to a public employee’s discharge on facts differing in important respects from those in Elrod and Branti. Pickering concerned an action brought by a teacher against the board of education that had dismissed him.

The teacher sought reinstatement. He had been dismissed for sending, apropos of a recently proposed tax increase, a letter to a local newspaper criticizing the school board’s handling of past proposals to raise new revenue for the schools. The Court first established a framework for resolving issues of this type: “The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 391 U.S. at 568 , 88 S.Ct. at 1734-35 . No question of maintaining discipline or harmony among co-workers was presented, the Court found, since the teacher’s statements were not directed to any person with whom the teacher would be in daily contact.

Id. at 569-70 , 88 S.Ct. at 1735-36 . The Court then applied a balancing test; it first noted that the question whether the school system required additional funds was a matter of legitimate public concern. “On such a question,” it stated, ¹⁹⁹ “free and open debate is vital to informed decision-making by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” Id. at 571-72 , 88 S.Ct. at 1736 .

Statements by public officials on matters of public concern, the Court indicated, must be given First Amendment protection even though the statements are directed at their nominal superiors. Id. at 574 , 88 S.Ct. at 1737 . The Court affirmed that, speaking generally, the State’s interests as an employer in regulating the speech of its employees “differ significantly from those it possesses in connection with regulation of the speech of citizenry in general.” Id. at 568 , 88 S.Ct. at 1734 . On the particular facts in Pickering , however, the Court found that the school board’s interests in limiting its teachers’ speech opportunities were not significantly greater than its interests in limiting the speech opportunities of the general public, because the facts did not show that the teacher’s statements, even if false, impeded his classroom performance or interfered with the regular operation of the schools.

Id. at 572-73 , 88 S.Ct. at 1736-37 . The Court therefore found the teacher’s dismissal unconstitutional, holding that unless there is proof of false statements knowingly or recklessly made, “a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.” Id. at 574 , 88 S.Ct. at 1738 . In Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977), the Court considered the application of the Pickering balancing test in a case in which the grounds for the public employee’s discharge included both conduct constitutionally protected and conduct not constitutionally protected.

In that case an untenured teacher brought an action for reinstatement against ²⁰⁰ his former employer, a school board, claiming that the board’s decision not to rehire him violated his rights under the First and Fourteenth Amendments. Prior to the board’s decision the teacher had been involved in several incidents relating to his employment, viz., an argument with school cafeteria employees, an incident in which he swore at students, an incident in which he made obscene gestures to female students, and an incident in which he had by a telephone call communicated to a radio station the substance of a memorandum from the school principal relating to teacher dress and appearance. When the teacher sought an explanation for the board’s decision not to rehire him, he received a statement citing his “notable lack of tact in handling professional matters,” followed by references to the radio station and obscene gesture incidents. The federal district court, concluding that the telephone call was conduct protected by the First Amendment, reasoned that since this protected conduct had played a substantial part in the decision not to rehire the teacher, reinstatement was appropriate.

On appeal the Supreme Court accepted the district court’s finding that the telephone call was protected by the First and