Joseph L. Donahue v. Patrick Staunton, Individually and as Chicago Area Zone Director , 471 F.2d 475 ( 1973 )

HASTINGS, Senior Circuit Judge.

Joseph L. Donahue brought this action against the defendants Patrick Staunton, individually and as Chicago Area Zone Director of the Illinois Department of Mental Health; H. C. Piepenbrink, individually and as Manteno State Hospital Superintendent; and John F. Briggs, individually and as Director of the Illinois State Department of Mental Health, alleging that defendants had discharged plaintiff from his position as Chaplain at the Manteno State Hospital in abrogation of his right to freedom of speech guaranteed by the First and Fourteenth Amendments to the Federal Constitution. He sought relief pursuant to Title 42, U.S.C.A, § 1983. Jurisdiction was established pursuant to Title 28, U.S.C.A. § 1343.

This case was tried to the court without a jury. The court filed its findings of fact and entered conclusions of law favorable to plaintiff and rendered judgment against the defendants in the amount of $2,000 as punitive damages, with interest; out-of-pocket expenses in an amount to be later determined; attorney fees of $750; and costs. Affirmatively, defendants were ordered to offer plaintiff full and unconditional reinstatement to his former position and, in the event he accepted such reinstatement, an injunction would be issued restraining and enjoining defendants, their agents and successors, from interfering with, coercing or discriminating against plaintiff in the exercise of his protected rights of free speech. Defendants have appealed.

Plaintiff Father Donahue, a Roman Catholic Priest, was appointed Catholic Chaplain at Manteno State Hospital on July 14, 1964, and served in such capacity until his discharge on December 4, 1969. As Chaplain, plaintiff received a salary which he, under his vow of poverty, forwarded to the Order of St. Viator, withholding sufficient funds to provide for his daily needs. In this capacity plaintiff was charged with serving the spiritual needs of the patients and employees at Manteno, along with sundry other duties, including speaking at public functions to explain the operations of the hospital.

Along with all other employees of the hospital, plaintiff was annually rated in the performance of his duties. Until the final report, prepared after plaintiff’s discharge, he was always rated either “good” or “excellent” on seven separate categories of duties and responsibilities. The annual review covering the period from July 14, 1968 to July 14, 1969 (five months prior to his discharge), prepared by plaintiff’s immediate superior, contains the following analysis of his performance:

“Father Donahue energetically and conscientiously discharges his duties as a spiritual advisor and counselor to the patients of Catholic faith at M. S. H. He has extremely favorable rapport with the patients to whom he provides the chaplaincy services, and at all times considers what is best for the patient.

“Father Donahue constantly strives to bring about better conditions at M. S. H. and in doing so apprises the staff of changes that should be initiated in order to correct situations which are not acceptable for the care and treatment of the mentally ill. His ability to communicate with others concerning these problems and the presentation of his solutions leave little to misinterpretation. His strong initiative and precise communicating among employees and patients are attributes which make him an asset to M. S. H.”

Soon after plaintiff was assigned to Manteno, the hospital entered a period of transition. New policies were instituted so that the patients were no longer kept locked up and under strict security, no longer were the sexes separated, and the hospital’s employment practices were decentralized. Plaintiff approved of these enlightened and progressive policies in theory but became alarmed with the method of their implementation. It was the consensus that such new programs would require more supervision than formerly provided. He was gravely concerned that the supervisión was inadequate.

In 1966 plaintiff expressed his criticism and concern in a union newspaper column which he authored; in a public speech to a convention of the Illinois State Federation of Labor; and in other avenues of public expression.¹ Following the Board’s report, supra note 1, defendant Piepenbrink in 1967 appointed plaintiff to a committee with the responsibility of developing a hospital policy relating to the problems of promiscuity.

It appears from the record that there was a lull in the plaintiff’s public criticism of the hospital operations. Later, frustrated by what he felt was a lack of progress in resolving the problems of the hospital, plaintiff in the fall of 1969 began another campaign of public criticism. His public statements included a speech by him critical of the operations of the hospital, which was reported in a local newspaper on October 20, 1969; on October 27, 1969, the same newspaper printed a letter to the editor written by plaintiff in which he criticized as impractical a particular program of the hospital; and on November 13, 1969, the same newspaper published a paid advertisement authored by plaintiff and one Thomas Nayder which set forth 12 specific incidents of negligence or improper activity at the hospital.

The advertisement appears to be the most critical statement made by the plaintiff and one of the significant factors leading to his discharge. In relevant part, the advertisement charged that the Director of the Illinois Mental Health Department, the Superintendent of Manteno State Hospital and the directors of certain programs at the hospital were all “laymen,” and that there was neglect in the preparation and funerals of the dead, little or no effort on the part of authorities to prevent runaways and improper treatment and delay in treatment of patients. He questioned the legality of a self-medication program and asserted that the hospital lacked certain facilities. He charged there was mixing of untidy patients with tidy patients, that the hospital issued birth control pills to highly promiscuous patients and other incidents of neglect.

Although the truth or falsity of these allegations was not proven at trial, we note that many of the accusations came from reports of the “Pharmacy & Therapeutics Committee Meetings” at Manteno State Hospital and other inter-office memoranda. Also, plaintiff testified, and we presume from the court’s findings that it was credited, that he checked every charge he made either by direct observation, conversation with “reliable sources, doctors, nurses, security men and aides,” or through a number of memoranda which came to his office. He also testified that he never knowingly published or stated anything that was false.

Letters were also written by plaintiff to the Governor in which he stated his purpose was “to relate some of [the] happenings” at the hospital. Copies of such letters were sent to defendant Briggs. In addition, plaintiff encouraged others to write to the Governor to protest what he believed to be the deplorable conditions at Manteno.

Defendants assert that the plaintiff’s statements were made without checking their validity and contained falsehoods and half-truths which were detrimental to the operation of the hospital and the well-being of the patients. The termination slip handed to plaintiff stated he was discharged for cause, to wit:

“In the best interest of the patients and staff at Manteno Hospital, the Chicago Area Zone Director, Patrick Staunton, M. D., and Manteno State Hospital Superintendent H. C. Piepenbrink, have decided on this action. This priest has consistently, arid without checking validity of criticism, made public charges against the treatment programs of this facility which have little basis in fact and which are detrimental to the care and treatment of the patients and can no longer be tolerated by the management of one of its employees.”²

Hence the principal issue we face here is whether the discharge of plaintiff by the named defendants violated his First Amendment right to freedom of speech. Ancillary issues are: whether plaintiff was an employee of the Manteno State Hospital; whether the Illinois statutory scheme for the discharge of employees was improperly held unconstitutional; and whether the remedy afforded was proper.

We will assume for the purposes of this opinion that some of the allegations made by the plaintiff were false or misleading. However, upon our examination of the record, we find that at the time of their issuance they were reasonably believed to be true by the plaintiff and were not knowingly false and recklessly made.

Defendants’ first claim, that plaintiff was not an employee of the State of Illinois or Manteno State Hospital, is without substance. It almost goes without saying that plaintiff was an employee of the State, i.e., he received a salary from the State, it being irrelevant that he saw fit to forward the money to his Order; his performance as Chaplain was evaluated annually by his superior, as was the performance of all other hospital employees; and his termination slip spoke of him as an employee. We hold there were sufficient indicia of an employment relationship to support this cause of action.

Since we find that plaintiff was an employee of the State, we need not decide the further question of whether any relationship between an individual and the State other than employment, which, if terminated in violation of constitutional rights, would be sufficient for a cause of action under section 1983.

Defendants next contend that the “Personnel Code” of Illinois, established pursuant to ch. 127, § 63bl01, et seq., of Illinois Rev.Stat. (1969), was implicitly held unconstitutional by the trial court and thus the use thereof was enjoined. This they argue violated Title 28, U.S. C.A. § 2281, which provides that any injunction restraining the enforcement or use of a state law by a federal court must be by a district court of three judges.

It is conceded that plaintiffs position with the hospital was “exempt” under the Illinois “Personnel Code,” supra, and that he could be discharged at his employer’s discretion without a civil service hearing.

We hold that the court below did not find the Illinois statutory scheme violative of the First and Fourteenth Amendments, but rather held that the discretion afforded employers by the statute was necessarily limited by the requirements of the Federal Constitution ; hence, by implication the state statute was held constitutional. The defendants, not the statute, were held to have, deprived plaintiff of his constitutional rights. The conditional injunction was directed against the defendants, state agents, and not the use of the state statute.³ It necessarily follows that we find nothing improper in the district court’s procedural disposition of this case.

We finally come to the crucial issue, viz., whether the defendants by discharging plaintiff deprived him of his First and Fourteenth Amendments rights to freedom of speech.

Defendants would have us rely on the analysis in Jenson v. Olson, 8 Cir., 353 F.2d 825 (1965), in deciding this question. We find Jenson to be unpersuasive, mainly because it no longer represents the prevailing thought in this area. See Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) and Pickering v. Board of Education, etc., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

The leading Supreme Court case involving constitutional rights of public employees is Pickering v. Board of Education etc., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Under the particular facts in that case, the Court, applying the New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), standard for defamation against public officials, held: “In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, 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.” 391 U.S., at 574, 88 S.Ct., at 1738.

Pickering was a refinement of the idea that public employment may not be conditioned upon the surrender of constitutional rights. As was stated by the Court in Keyishian v. Board of Regents, 385 U.S. 589, at 605-606, 87 S.Ct. 675, at 685, 17 L.Ed.2d 629 (1967), “ < * * -x- the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.’ ” Taking this lead, we announced in Muller v. Conlisk, 7 Cir., 429 F.2d 901, at 904 (1970): “It may no longer be seriously asserted that public employees, including policemen, have no right to criticize their employer.”

The reason for the rule announced in Pickering was explained in Kiiskila v. Nichols, 7 Cir., 433 F.2d 745, at 749 (1970). “A citizen’s right to engage in protected expression or debate is substantially unaffected by the fact that he is also an employee of the government and, as a general rule, he cannot be deprived of his employment merely because he exercises those rights. This is so because dismissal from government employment, like criminal sanctions or damages, may inhibit the propensity of a citizen to exercise his right to freedom of speech and association.” The court elaborated: “To protect society’s interest in uninhibited and robust debate the first amendment demands that government be prohibited from inhibiting or suppressing speech by indirection through discharge of a government employee when the same objective could not constitutionally be achieved by criminal sanctions or other direct means.” Id.

This is not to say that a public employer or State may under no circumstances discharge an employee for his public statements. Pickering provided, 391 U.S. at 569, 88 S.Ct. at 1735: “Because of the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged.” Rather the Court felt: “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.” Id. at 568, 88 S.Ct. at 1734.

Interests of the State which, if strong enough, the Court in Pickering felt might lead to a different result in the future are: (1) maintaining discipline or harmony among co-workers; (2) need for confidentiality; (3) employee’s position may be such that his false accusations may be hard to counter because of the employee’s presumed greater access to the real facts; (4) statements which impede the employee’s proper performance of his daily duties; (5) statements so without foundation as to call into question his competency to perform the job; and (6) a close and personal working relationship between the employee and supervisor which called for personal loyalty and confidence.

Defendants argue that plaintiff’s accusations were so extensive and so critical that they impeded the performance of his duties, namely, to address “professional and lay groups to promote understanding of problems and obligations concerning patients” and “interpret the institution’s problems and policies to the public.” However, we do not find that this was such a critical responsibility of a Chaplain as to give the State a strong enough interest to interfere with the plaintiff’s free speech rights. This is especially so since plaintiff was not even evaluated on this function until May 13, 1969, and then he was rated “good.” Further, defendants were not able to prove that the plaintiff’s vociferousness hindered him in the performance of his religious and spiritual duties toward the patients at Manteno.

It could be argued that plaintiff’s exaggerated comments, because he is a priest, were given greater credence by the general public than would those of a non-clerical employee. This may be true, but defendants have not shown that they were hindered in any way in responding to the accusations of plaintiff; in fact, at several points they specifically chose not to respond. Also, if plaintiff’s criticisms were so clearly false, as defendants would have us believe, we do not see how his being a priest, were given greater credence by being refuted by open and free public debate and discussion. Indeed, that is what freedom of speech is all about.

In sum, we have considered the countervailing factors mentioned in Pickering and find them inapplicable here. We conclude and hold in the case at bar that the interest of society in “uninhibited and robust debate” on matters of public concern, such as mental health care, and plaintiff’s individual interest in being free to speak out on matters of concern to him, outweigh those of the State as an employer. This is a proper guarantee of “the public’s right to know.” It follows that the actions of defendants, as agents of the State, in dismissing plaintiff, violated his First and Fourteenth Amendments rights to free speech.

Having found that defendants violated plaintiff’s constitutional rights, our next concern is whether the relief afforded in the judgment below was proper. Defendants first argue that because the district court found that they “were acting within their authority and capacity as officials and agents of the State of Illinois,” they were entitled to an immunity from any and all damages resulting from their actions.

In McLaughlin v. Tilendis, 7 Cir., 398 F.2d 287 (1968), where the defendant had claimed protection from damages in a section 1983 action under the Illinois Tort Immunity Act (Ill.Rev.Stats.1967, ch. 85, § 2-201), we held: “Under the Supremacy Clause, that statute cannot protect defendants against a cause of action grounded, as here, on a federal statute. * * * However, other officials [than legislators and judges], such as present defendants, retain only a qualified immunity, dependent on good faith action.” Id. at 290.

In this regard, defendants claim that since the court below did not specifically find that they acted in bad faith, they are entitled to immunity from all damages. However, it is a necessary implication of the court’s decision and judgment against the defendants that they acted without justification in the case at bar. “At best, defendants’ qualified immunity in this case means that they can prevail only if they show that plaintiffs were discharged on justifiable grounds. Thus, here a successful defense on the merits merges with a successful defense under the qualified immunity doctrine.” McLaughlin at 290-291.⁴

Defendants claim that the damage award of $2,750 ($2,000 punitive damages and $750 attorney fees) was improper because it was against defendants and/or their successors. This is inaccurate and ignores the fact that the district court by order of January 7, 1971, deleted the words “and/or their successors” from the monetary award for punitive damages and attorney fees. However, we find that the award of out-of-pocket expenses inadvertently still includes the words “and/or their successors.” Since defendants’ successors were not parties to this law suit, the judgment to that extent must be and is ordered modified by deleting the words “and/or their successors” from the award of out-of-pocket expenses.

Defendants question the award of punitive damages. Their concern is without foundation. Since we have found that defendants acted in bad faith, the award of punitive damages was within the sound discretion of the trial court.

Although the defendants have not raised the question, we feel that, in the interest of justice, we should inquire into the propriety of awarding attorney fees in this case. Section 1983 does not by its terms expressly authorize or deny the allowance of attorney fees. “There is ample authority * * * to support the proposition that the allowance of attorneys’ fees and expenses of preparation for trial is in the discretion of the district court sitting in equity where exceptional circumstances call for their allowance in order to do justice between the parties * * *.” Lee v. Southern Home Sites Corporation, 5 Cir., 429 F.2d 290, at 295 (1970).

In Lee, where the trial court had denied attorney fees, the court found, at 296: “Clearly, for this court to overturn a denial of attorneys’ fees, it must appear that the trial court abused its discretion, but it is impossible to review the soundness of such an exercise of discretion unless the trial court indicates in its findings of fact the grounds upon which it exercised its discretion * •>:•_” Similarly, in the case at bar, there are no grounds given for the award of attorney fees by which we can judge the soundness of the exercise of the trial court’s discretion.

Nevertheless, we need not remand for further findings in this ease because the reasons for the award of attorney fees appear from the face of the record. The benefit to the general public, i. e., of encouraging free and robust public discussion, is substantial in this case and should not depend for its protection upon the financial status of the individual who is deprived of his constitutional rights. Hence, the relative financial positions of the parties at the time of the constitutional violation, which in the ease at bar weighs in favor of allowing attorney fees,⁵ is relevant. There is also some evidence that the result of plaintiff’s dismissal had a chilling effect upon public discussion of mental health care by employees at Manteno. And finally, although defendants’ actions were not found to be egregious, they were consciously taken to stifle plaintiff’s public criticism. Although we consider the better practice to be for a trial judge to state his grounds for an award of attorney fees, we hold the evidence weighs in favor of an award here and in doing so that the district court did not abuse its discretion.

We have reviewed all other objections to the relief afforded in this case and find them unpersuasive. If more should be said, we need only to quote from the oft-cited case of Bell v. Hood, 327 U.S. 678, at 684, 66 S.Ct. 773, at 777, 90 L.Ed. 939 (1946). “Moreover, where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief. And it is also well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.”

For the foregoing reasons, the judgment is affirmed as modified.

Affirmed as modified.

1 . On. September 9, 1966, the Governor of Illinois called for an investigation by the Board of Mental Health Commissioners into the public criticism of the Manteno State Hospital. The main impetus for this investigation seems to have come from picketing by off-duty hospital employees who publicly expressed concern over the moral climate at the hospital.

The Board issued a report to the Governor on October 20, 1966, and found that sexual behavior of all types would undoubtedly be less if there was a more adequate staff to supervise the patients under the more permissive policies. However, the Board felt that sexual morality was not the basic issue but rather that Manteno was in transition and operating a gigantic institution on a skimpy budget which was designed before most of the new programs began.

This report in many respects is consistent with the concerns expressed by plaintiff in his public statements, although the report was critical of public criticism itself. In the newspaper report of plaintiff’s public speech it was stated:

“The new programs introduced by the Illinois Department of Mental Health are fine but it’s like buying an expensive car when you can only afford a wheelbarrow. The programs need workers and the patients need constant examination, weeks and weeks of intensive treatment and constant care.

“But he added, because there are insufficient employes and because ‘many employes are unqualified’ to carry out such programs, the result has been unsupervised wards, inadequate care, and illicit sexual activity.”

2 . There is credible evidence, in the form of a memorandum from John P. Dailey, Special Assistant to the Governor, to defendant Briggs approving his decision to discharge plaintiff and cautioning him to do it properly because of the inevitable protest from certain sectors, to support the court’s conclusion that defendant Briggs was also a party to the discharge of plaintiff.

3 . The district court specifically stated: “I have no quarrel with your [defendants’] right to discharge noncivil service employees peremptorily providing that their federal civil rights and constitutional rights have not been violated. I have no quarrel with that being the law.”

4 . See also Simcox v. Board of Ed. of Lockport Tp., etc., Will County, Ill., 7 Cir., 443 F.2d 40, at 42 (1971), where we reiterated the established rule: “Any immunity which public officials enjoy in defiling; with (heir employees is limited by the requirement that their actions vis-áris such employees be taken in good faith.”

5 . Although there is some indication in the record that plaintiff is on leave from his Order as a priest and is working for compensation with a labor organization, this is irrelevant since the critical time is the time of the constitutional deprivation.