Appeals from the United States District Court for the Western District of Wisconsin. No. 80 C 513 -- Barbara Crabb, Judge.
Cummings, Chief Judge, and Posner and Flaum, Circuit Judges.
Arline Soderbeck brought this suit under section 1 of the Civil Rights Act of 1871, now 42 U.S.C. § 1983, against Robert Kellberg (the Sheriff of Burnett County, Wisconsin), the three members of the county's Law Enforcement Committee, and the county itself. She alleges that she was fired from her job in the sheriff's office in violation of her rights under the First Amendment, made applicable to state action by the Fourteenth Amendment. She had been hired to work in the sheriff's department when her husband was the sheriff, but Kellberg defeated Soderbeck in a subsequent election for sheriff and the first thing he did on taking office in 1979 was to fire Mrs. Soderbeck. The jury was entitled to find that Kellberg's only reason for firing her was that she was the wife and presumed ally of his political adversary.
At the close of the plaintiff's case in chief, the district judge directed a verdict for the three members of the Law Enforcement Committee; later the judge awarded them attorney's fees of $30,110.62 and costs of $3,061.18. The jury brought in a verdict against the remaining defendants, that is, Sheriff Kellberg and Burnett County, of $33,375 in compensatory damages and $5,000 in punitive damages (the latter against Kellberg only). The judge held that an award of punitive damages was improper in the circumstances, but entered judgment for the compensatory damages that the jury had awarded. The sheriff and the county have appealed from this judgment, while Mrs. Soderbeck has appealed from the denial of punitive damages, the directed verdict for the members of the Law Enforcement Committee, and the award of attorney's fees to them.
A public agency that fires an employee because of his political beliefs or political affiliations infringes his freedom of speech, see Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980); Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976), but there are exceptions to this principle, carved out to minimize its adverse impact on the effective functioning of government. For example, employees at the policy-making level of government can be fired on political grounds. Id. at 367-68 (plurality opinion); Shakman v. Democratic Organization of Cook County, 722 F.2d 1307, 1309-10 (7th Cir. 1983) (per curiam). Mrs. Soderbeck was not a policy maker; but if, as the defendants argue, she was the sheriff's confidential secretary, then Kellberg could fire her without violating the Constitution. See Stegmaier v. Trammell, 597 F.2d 1027, 1038 (5th Cir. 1979) (dictum). You cannot run a government with officials who are forced to keep political enemies as their confidential secretaries, and Mrs. Soderbeck was the political enemy of her husband's political enemy, Kellberg. Any implication of the plurality opinion in Elrod v. Burns that only a policy maker is unprotected by the principle announced in that case was superseded by the broader formulation in the majority opinion in Branti v. Finkel, which allows an employee to be fired if "the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." 445 U.S. at 518. See also Livas v. Petka, 711 F.2d 798, 800-01 (7th Cir. 1983). It need not be a policy-making office. If Rosalynn Carter had been President Carter's secretary, President Reagan would not have had to keep her on as his secretary.
Mrs. Soderbeck, however, had been trained as a bookkeeper and her title was bookkeeper, not secretary or confidential secretary; and though she did do most of the typing in the sheriff's office, there was evidence that if the sheriff needed something typed he would hand his handwritten draft to whoever in the office was handy. Burnett County has a population of only 12,000 and a tiny sheriff's office whose six employees at the time of Mrs. Soderbeck's termination did not have sharply differentiated tasks; it was only after she was fired that a position of "confidential secretary" was created with a different job description from that of the bookkeeper's position that Mrs. Soderbeck had occupied. So while she did typing and handled legal papers, such as summonses and warrants, the other employees did these things too. She also did janitorial work, and performed domestic chores for the prisoners in the county jail (which is in the same building as the sheriff's office and home) as jail matron and laundress -- not the usual functions of a confidential secretary. And she did not take dictation -- no one in the office did. If she could be fired as a confidential employee, so could anyone else employed in the office, on the theory that if an office is small enough the tasks usually performed by the boss's personal secretary may be parcelled out among all the employees.
This is not to say that Mrs. Soderbeck was, as a matter of law, an employee who could not be fired because of her political affiliation. It is to say merely that the question was sufficiently uncertain to be one for the jury to decide. The defendants argue that whether or not an employee exercises a policy-making role or is a repository of confidences that make loyalty an essential part of his job description should always be a question of law, but we cannot agree with this point, for which no authority is offered, and which has been rejected in previous cases in this and other circuits. See, e.g., Nekolny v. Painter, 653 F.2d 1164, 1169 (7th Cir. 1981); Stegmaier v. Trammell, supra, 597 F.2d at 1034 n. 8, and cases cited there. Rightly or wrongly, our system commits the decision of complex as well as simple facts, facts tinctured with legal or policy significance (such as negligence) as well as the who-did-what-to-whom facts that can be found without any instruction in the law, to the jury in cases in which a right to a jury trial is given. Maybe some facts are so difficult for laymen to determine that they can be withdrawn from the jury; this is the theory (or rather a theory) of the equity accounting, see, e.g., Medtronic, Inc. v. Intermedics, Inc., 725 F.2d 440, 443 (7th Cir. 1984), and is the basis for the Third Circuit's interesting ruling (on which of course we need take no position here) that trial by jury violates due process of law if the suit "is too complex for a jury to understand and decide rationally." In re Japanese Electronic Products Antitrust Litigation, 631 F.2d 1069, 1090 (3d Cir. 1980); contra, In re U.S. Financial Securities Litigation, 609 F.2d 411, 431 (9th Cir. 1979); see generally Comment, Complex Civil Litigation and the Seventh Amendment Right to a Jury Trial, 51 U. Chi. L. Rev. 581 (1984). But the question whether or not a clerical worker is a policy-making or confidential employee is not of such character.
Although we therefore think the district judge was right not to disturb the jury's verdict of compensatory damages, we also think she was right to rescind the award of punitive damages. This conclusion requires us to resolve a question left unanswered by Smith v. Wade, 461 U.S. 30, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983), where the Supreme Court held that punitive damages will lie for reckless as well as intentional violations of section 1983. The question is whether it is ever necessary to show that the defendant knew he was violating the plaintiff's legal rights.
In a recent section 1983 case we approved an instruction that allowed the jury to award punitive damages if it found the defendant's actions "maliciously or wantonly or oppressively done" and that defined these adverbs as follows: "An act or a failure to act is maliciously done if prompted or accompanied by ill will or spite or grudge either toward the injured person individually or toward all persons in one or more groups or categories of which the injured person is a member"; "wantonly done if done in reckless disregard or callous disregard of or indifference to the rights of one or more persons including the injured person"; "oppressively done if done in a way or manner which injures or damages or otherwise violates the rights of another person with unnecessary harshness or severity as by misuse, or abuse of authority, or power, or by taking advantage of some [weakness] or disability or misfortune of another person." McKinley v. Trattles, 732 F.2d 1320, 1326 n. 2 (7th Cir. 1984) ("weakness" bracketed in original). This is a standard punitive-damages instruction, see 3 Devitt & Blackmar, Federal Jury Practice and Instructions § 85.11 (3d ed. 1977), which though not tailored to civil-rights cases is commonly used in them, see, e.g., besides McKinley v. Trattles, Abraham v. Pekarski, 728 F.2d 167, 172 n. 2 (3d Cir. 1984). Although the instruction conveys a mood (perhaps none too clearly to the average juror) rather than establishing precise criteria, it does imply distinct types of misconduct -- though, as it seems to us, two rather than three. In the first, the defendant actually derives satisfaction from hurting the plaintiff; in the second, the defendant, while not having any particular desire to hurt the plaintiff, tramples on the plaintiff's rights, in a fashion that can fairly be called reckless, to accomplish his own aims. This distinction corresponds to the distinction in the criminal law between deliberate and reckless harm. If a man sets fire to a house intending to kill the occupants, he is a deliberate murderer; if he sets fire to a house he knows to be occupied, but does so to warm himself rather than to kill the occupants, he is a reckless murderer. But he is a murderer in either case, and would be subject to punitive damages in a suit for wrongful death. The distinction between deliberate and reckless wrongdoing is well captured by the Supreme Court's formulation of its holding in Smith v. Wade : "We hold that a jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." 103 S. Ct. at 1640.
Although there was some evidence in this case of personal spite by Kellberg toward the Soderbecks as well as political rivalry, and spite would bring the case within the first type of conduct for which punitive damages is a proper sanction, the special-verdict form, not challenged by the plaintiff, confined the jury to the second: "In terminating plaintiff Arline Soderbeck's employment with the Burnett County Sheriff's Department, did defendant Robert Kellberg act with reckless indifference to the plaintiff's rights not to be terminated for her associations or political activity?" (It is no doubt regrettable that the instructions to the jury did not define "reckless indifference," cf. United States v. Hanlon, 548 F.2d 1096, 1101-02 (2d Cir. 1977), as the legal meaning of the term is unlikely to be obvious to the average juror; but no complaint was made on that score.) This formulation allowed the jury to award punitive damages even if it found that Kellberg had fired Mrs. Soderbeck not to hurt her but just to make life easier for himself; and the district judge was quite right to hold that the evidence did not permit an award of punitive damages on this basis (that is, on the basis of recklessness).
The difference between deliberate and reckless harm is the difference between wanting to hurt someone and knowing that hurting someone is a highly likely consequence of an act undertaken for a different end. But in the latter case there must be knowledge of the danger that the defendant's act creates, which in this case is a danger of depriving a public employee of her freedom of speech; and the knowledge of this danger presupposes some knowledge of the free-speech rights of public employees.
This point can be made clearer by noting that a primary purpose (we think the primary purpose) of punitive damages, both generally and in section 1983 cases, is to deter. See, e.g., Smith v. Wade, supra, 103 S. Ct. at 1636, 1639; City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-67, 269-70, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981); Prosser and Keeton on the Law of Torts § 2, at p. 19 (5th ed. 1984). Unless the defendant knew that the conduct which resulted in the injury to the plaintiff was forbidden, an award of punitive damages will have no deterrent effect. This is the basis on which the Supreme Court has created a limited good-faith exception to the exclusionary rule, a rule whose current rationale is a deterrent one. See United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 3412, 82 L. Ed. 2d 677 (1984).
If Kellberg had not fired but instead had arrested Mrs. Soderbeck, without any basis other than antipathy to her political connections, an award of punitive damages would clearly have been appropriate, even if no spite could be shown. Every law-enforcement officer in the United States knows -- or had better learn -- that the law places limits on the authority of the police. But a police officer in a small rural county, even a police chief or a sheriff, cannot be assumed to know that if he fires, on the most natural of political grounds, a clerical employee whose loyalty he has some reason to regard as a legitimate job qualification, he may be violating the law. His ignorance would not necessarily immunize him from liability for compensatory damages; Kellberg does not even argue that as the law stood when he acted, he could reasonably have believed that he was justified in what he did, and therefore is immune from all damage liability. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19, ...