Jimmie McBee v. Jim Hogg County, Texas and Gilbert Ybanez, Javier Alfonso Hinojosa v. Jim Hogg County, Texas , 730 F.2d 1009 ( 1984 )

TATE, Circuit Judge,

concurring:

I concur in the result reached by the majority. However, I am unable to disagree with the view expressed by Judge Rubin’s dissent that Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), addressed issues of no special relevance to those now before us and was not intended to modify the Elrod-Branti rationale that First Amendment rights of public employees are offended if they are discharged solely because of their private political beliefs. Although I as a citizen and judge may agree more with Justice Powell’s dissent in Elrod v. Burns, 427 U.S. 347, 376-89, 96 S.Ct. 2673, 2691-97, 49 L.Ed.2d 547 (1976), fidelity to the concept of ordered liberty under our Constitution requires us, as an intermediate court, to follow Elrod and Branti as controlling interpretations of First Amendment rights.

Nevertheless, ultimately, I concur because I do not believe Elrod-Branti requires that a newly-elected sheriff of a small county with a small staff (here, six deputies and four dispatchers) give any special consideration in making his own new appointments to deputies appointed by a former sheriff. This proposition would, I assume, be indisputable, if the former deputies had taken no active part in the political campaign that resulted in the new sheriffs defeat of the former sheriff. In a small office like the present, of necessity there must be an intimate relationship between the sheriff and his appointed staff, each of whom — in a small-county context— will be regarded by the public (and the voters) as the alter ego of the new sheriff in all their official acts.

Thus, I do not believe the reach of Elrod-Branti extends so far as to prevent a newly-elected sheriff of a small county from selecting, as deputies for his small staff, persons other than those of his predecessor’s staff — whether or not the latter had actively and publicly opposed the new sheriff in his successful effort to defeat the former sheriff to whom these former deputies owed their appointment and their loyalty. To hold otherwise, would be to permit an incumbent deputy to assure himself of perpetual tenure if he actively and publicly supported his respective incumbent sheriffs in each of their succeeding political campaigns. I do not believe that the Elrod-Branti rationale intended that the First Amendment be used as a sword instead of a shield.

I am thus more in accord with the rationale of the panel opinion in this case, 708 F.2d 834, 841-42 (1983), and with the views of the Fourth Circuit in Ramey v. Harber, 589 F.2d 753, 755-57 (4th Cir.1978), cert. denied, 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275 (1979), than I am with the en banc majority’s rationale.

I therefore concur only in the result of the majority.