author: HERBERT F. MURRAY, District Judge.

text:
    The UNITED STATES of America v. The DISTRICT OF COLUMBIA; and the Department of General Services, District of Columbia.
    Civ. No. HM84-696.
    United States District Court, D. Maryland.
    Oct. 10, 1984.

      F. Henry Habicht, III, Asst. Atty. Gen., Dept, of Justice, Land & Natural Resources Div., Pamela S. West, Atty., Dept, of Justice, Washington, D.C., J. Frederick Motz, U.S. Atty., for the Dist. of Md., William D. Quarles, Asst. U.S. Atty., Baltimore, Md., for plaintiff.
    Inez Smith Reid, Corp. Counsel, D.C., John H. Suda, Principal Deputy Corp. Counsel, D.C., Martin L. Grossman, Deputy Corp. Counsel, D.C., Roberta L. Gross, Asst. Corp. Counsel, D.C., Washington, D.C., Ronald W. Fuchs, Resident Counsel, D.C., Baltimore, Md., Anthony S. Borwick, Chief Counsel for Litigation, Office of Gen. Counsel, GSA, Washington, D.C., for defendants.
   MEMORANDUM

HERBERT F. MURRAY, District Judge.

This case arises out of the inability of the United States and the District of Columbia (“District”) to resolve their dispute over the ownership of the Glenn Dale Hospital property, a parcel of real property and improvements located in Prince George’s County, Maryland. The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1251(b)(2) or § 1345. The matter is currently before the court on cross motions for summary judgment.

Introduction

The piece of property at issue in this case is a two hundred acre tract of improved land in Prince George’s County, Maryland. The parties agree that the United States acquired legal title to the property from Margaret R. Sharman, widow, by deed dated August 14, 1930 and from Daniel B. Lloyd and his wife by deed dated September 4,1930. The United States took title to the property pursuant to Public Law Nos. 70-873, 45 Stat. 1425 (1929), and 71-144, 46 Stat. 218 (1930). Public Law No. 70-873 is now codified at D.C.Code Ann. § 32-113 (1981). It reads as follows:

Children’s Tuberculosis Sanatorium— Construction and equipping authorized. The Mayor of the District of Columbia is authorized to acquire, by purchase, condemnation, or otherwise a site, and to cause to be constructed thereon, in accordance with plans and specifications approved by such Mayor, suitable buildings and structures for use as a Children’s Tuberculosis Sanatorium, including necessary approaches and roadways, heating and ventilating apparatus, furniture, equipment, and accessories.

Congress later amended the statute by increasing the authorization of appropriation from $500,000 to $625,000 and making a provision for the then-Commissioners to acquire land for the sanatorium outside of the District. The amendment reads as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that section 2 of the Act of Congress approved March 1, 1929, entitled ‘An Act to provide for the construction of a children’s tuberculosis sanatorium’ is hereby amended by increasing the sum authorized to be appropriated to carry out the provisions of this Act from $500,000 to $625,000, or so much thereof as may be necessary, to be appropriated in like manner as other appropriations for the District of Columbia.
That if the land proposed to be acquired as a site for the said sanatorium is without the District of Columbia the title to said property shall be taken directly to and in the name of the United States ____(emphasis supplied)

46 Stat. 218 (1930).

Subsequently, the District took possession and proceeded to construct a number of buildings on the property including two hospital units, thirteen units used to house doctors and other medical personnel, and several support buildings. It operated and maintained the property as a medical facility until 1981. Since that time the property has been vacant. The District of Columbia remains in possession and considers itself to be responsible for maintenance of the property.

The instant controversy began in late 1980, just prior to the time when the Mayor of the District (“Mayor”) determined that it was not economically feasible to renovate Glenn Dale for continued use as a medical facility. In a series of letters between the Mayor’s office and the Regional Administrator of the Federal General Services Administration (“GSA”), the parties each asserted rights to the soon to be vacant property. GSA argued that the United States held legal title and that the District was in possession only under a conditional grant to use the property as a medical facility. In response, the District argued that it had equitable title by virtue of the legislative history of the authorizing legislation and its improvement and maintenance of the property. Paper # 1, ex. C-l et seq. The District also asserted that, although it did not believe it could sell the Glenn Dale land without Congressional approval, it did have authority to lease the property to private parties. Id.

The District did attempt to lease Glenn Dale in November 1982. The Department of Justice and the District’s Corporation Counsel later reached an agreement that the District would suspend its leasing efforts pending further research and discussion between the parties. To this end the Department of Justice provided the GSA with a legal opinion concluding that the District had no authority to lease. The District’s legal officials voiced their disagreement with that opinion and indicated their intention to readvertise the property for lease. Paper # 1, ex. E-l et seq. The District proceeded to list the property as available for long term lease in local newspapers in November and December 1983.

The United States responded by instituting the instant suit. On February 28,1984, the United States filed a verified complaint for ejectment under the applicable Maryland statute, Md.R.P.Code Ann. § 8-402. After evaluating the complaint, the court signed an order ejecting the District from the disputed property, enjoining any further attempts to lease the property, and requiring that the District show cause, in writing, why a writ of possession should not issue. The District filed a pleading denominated “response and answer” on April 12, 1984. In addition, on May 13, 1984, it filed a motion to dissolve the injunction contained in the court’s show cause order and to expedite further proceedings. By letter to counsel dated May 7, 1984, the court directed counsel for the United States to proceed with a motion for preliminary injunction. That motion was filed on May 21, 1984. By memorandum and order dated June 8, 1984, the court denied the motion for preliminary injunction and vacated the ex parte injunction entered on March 12, 1984. It then directed the parties to proceed with cross motions for summary judgment. A hearing on those motions was held on July 20,1984.

Cross Motions for Summary Judgment

In its cross motion the United States asks the court to declare it has a right to possess, use, and enjoy the Glenn Dale property, to order the defendant to vacate the property, to enjoin the defendant from leasing the property to third parties and to otherwise interfere with the United States’ property rights, and to award costs to the United States. Paper # 11. In its motion the District urges the court to deny relief to the plaintiff and to award summary judgment in its favor. Paper # 12. It asks also that the court declare the District has equitable title and rights to possess and use the property.

Rule 56(c) requires the court to enter summary judgment in favor of the moving party where

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

The court finds that, while the parties disagree as to the legal interpretation of a number of material facts, the facts themselves are not in issue. Accordingly, the court will make findings of fact and then proceed to determine which party is entitled to judgment as a matter of law.

1. Findings of Fact

A. The relationship between the federal government and the District of Columbia

1. Under Article I, Section 8, Clause 17, Congress has the power:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States.

U.S. CONST, art. I, § 8, cl.17.

2. In 1791, the District of Columbia was designated as the nation’s capital. Paper # 8, ex. G. (REPORT OF THE COMMISSION ON THE ORGANIZATION OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, U.S. Government Printing Office, Washington, 1972, p. 3.)

3. In 1802, Congress incorporated the City of Washington and provided it a local government structure with a mayor appointed by the President of the United States and a city council elected directly and indirectly by the voters. Id. at 6.

4. In 1871, Congress created one municipal government, a territorial-type government, to replace the municipal governments of the separate entities of Georgetown, the City of Washington and the County of Washington. The territorial government consisted of a governor who was appointed by the President; a bicameral legislature with a Council, appointed by the President, and a House of Delegates, elected by District voters; and a Board of Public Works consisting of the governor, as chairman, and four persons appointed by the President. Id. at 7.

5. In 1874, Congress abolished the previous District government and established a temporary government which consisted of three presidentially appointed commissioners and an officer of the Department of the Army Engineer Corps. Id. at 8.

6. In 1878, Congress established the form of District government which endured until 1967. It consisted of three presidentially appointed commissioners, one of whom was an officer from the Army Corps of Engineers. The District operated under this system at the time of the Glenn Dale purchase. Id.

7. In 1967, Congress established a May- or-Commissioner-Council form of government for the District to replace the. presidentially appointed Board of Commissioners. Id.

8. In 1973, Congress enacted the District of Columbia Self-Government and Governmental Reorganization Act of 1973, Pub.L. No. 93-198, 87 Stat. 774 (1973). This Act:

delegated many authorities to an elected government, but did not change some of the fundamental relationships between the District and Federal governments. Congress, for example, maintains ultimate legislative authority over the District and must still enact annual appropriations for the entire budget, as well as determine the Federal payment.

Paper #8, ex. F. (FY 1984: FEDERAL PAYMENT, District of Columbia Government, April 1983, p. I.

9. The present form of government for the District was established by the District of Columbia Self-Government and Governmental Reorganization Act.

B. The federal payment

1. Between 1790 and 1878, Congress provided no consistent level of annual support to the government of the District. During this period, governmental activities within the District were funded from locally generated taxes and varying levels of appropriation by Congress for specific District projects. STAFF OF HOUSE COMM. ON THE DISTRICT OF COLUMBIA, 96TH CONG., 1ST SESS., THE FEDERAL PAYMENT TO THE DISTRICT OF COLUMBIA: 1790-1980: A REFERENCE COMPENDIUM OF DOCUMENTS, STUDIES, REPORTS, AND PROPOSALS (Comm.Print 1979), 1-10.

2. Between 1878 and 1925, Congress continued to appropriate funds for specific District projects, but also made ‘50-50' annual payments to the account of the District in the U.S. Treasury in this manner:

The District of Columbia Organic Act of 1878 (20 Stat. 102) provided that all locally raised revenue derived from municipal taxes in the District of Columbia would be deposited in the Federal Treasury. In turn, Congress would appropriate these locally raised revenues and match them dollar for dollar with federal revenues derived from federal taxes levied on all citizens of the United States. This procedure was known as the 50-50 District of Columbia budget funding arrangement and remained in force until the 1920’s when it was replaced by the present lump sum federal payment arrangement.

Id. at 13. (Emphasis supplied).

3. In 1925, Congress initiated the lump sum annual federal payment to the District of Columbia which is still in effect. Under this arrangement, Congress appropriates local District of Columbia tax revenue and an annual lump sum federal payment for the District budget. It breaks down this total amount into separate appropriations for specific projects. Id. at 15-17.

4. In 1929, the lump sum annual federal payment to the District of Columbia was $9,000,000.00. Act of May 21, 1928, Ch. 659, 45 Stat. 645-683 (1928). This federal payment and locally generated District revenues were to cover: General Expenses, Contingent and Miscellaneous Expenses, Street and Road Improvement and Repair, Sewers, Collection and Disposal of Refuse, Public Playgrounds, Electrical Department, Public Schools, Metropolitan Police, Police and Firemen’s Relief Fund, Fire Department, Health Department, Courts and Prisons, Public Welfare, Militia, Anacostia River and Flats, Public Buildings and Public Parks, National Capital Park and Planning Commission, National Zoological Park, and Water Service. Id.

5. In 1930, the lump sum annual federal payment to the District of Columbia was $9,000,000.00. Act of February 25, 1929, Ch. 314, 45 Stat. 1262-1299 (1929). This federal payment and locally generated District revenues were to cover: General Expenses, Contingent and Miscellaneous Expenses, Street and Road Improvement and Repair, Sewers, Collection and Disposal of Refuse, Public Playgrounds, Electrical Department, Public Schools, Night Schools, Metropolitan Police, Policemen and Firemen’s Relief Fund, Fire Department, Health Department, Courts and Prisons, Public Welfare, Militia, Anacostia River and Flats, Public. Buildings and Public Parks, National Capital Park and Planning Commission, National Zoological Park, and Water Service. Id.

6. Appropriations for Glenn Dale Hospital fell under the “Public Welfare” heading. See e.g. 45 Stat. 1291 (1930).

C. The Glenn Dale authorization legislation

1. By the Act of March 1, 1929, in separate authorization, Congress provided for the construction of a children’s tuberculosis sanatorium. Act of March 1, 1929, Ch. 422, 45 Stat. 1425 (1929). This Act provided:

Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That the Commissioners of the District of Columbia are authorized to acquire, by purchase, condemnation, or otherwise, a site, and to cause to be constructed thereon, in accordance with plans and specifications approved by such commissioners, suitable buildings and structures for use as a children’s tuberculosis sanatorium, including necessary approaches and roadways, heating and ventilating apparatus, furniture, equipment, and accessories.
SEC. 2. There is authorized to be appropriated the sum of $500,000, or so much thereof as may be necessary, to carry out the provisions of this Act, to be appropriated in like manner as other appropriations for the District of Columbia.

Id. (Emphasis supplied).

2. By the Act of April 18, 1930, in separate authorization, Congress amended its previous Act for the construction of a children’s tuberculosis sanatorium. Act of April 18, 1930, Ch. 186, 46 Stat. 218-19 (1930). By this Act, Congress provided:

That section 2 of the Act of Congress approved March 1, 1929, entitled “An Act to provide for the construction of a children’s tuberculosis sanatorium,” is hereby amended by increasing the sum authorized to be appropriated to carry out the provisions of this Act from $500,-000 to $625,000, or so much as may be necessary, to be appropriated in like manner as other appropriations for the District of Columbia.
That if the land proposed to be acquired as a site for the said sanatorium is without the District of Columbia the title of said property shall be taken directly to and in the name of the United States, and in case a satisfactory price cannot be agreed upon for the purchase of said land, the Attorney General of the United States, at the request of the Commissioners of the District of Columbia, shall institute condemnation proceedings to acquire such land as may be selected for such site either in the State of Maryland or in the State of Virginia in accordance with the laws of said States, and expenses of procuring evidence of title or of condemnation, or both, shall be paid out of the appropriation herein made for the purchase of said site.

Id. (Emphasis supplied).

D. The Glenn Dale appropriation legislation (1930-1940)

1. The District of Columbia Appropriation Act for fiscal 1931, 46 Stat. 981, Chap. 848 (July 3, 1930, contains a number of specific appropriations for Glenn Dale including $74,800 for salaries; $59,000 for fuel, forage, vehicles, clothing and the like; $10,000 for repairs and improvements; and $75,000 for purchase of a site. Paper # 14, ex. A

2. The District of Columbia Appropriation Act, 46 Stat. 1405, Chap. 282 (Feb. 23, 1931), contains the following specific appropriations for Glenn Dale: $80,080 for salaries; $60,000 for fuel, forage, vehicles, clothing and the like; $23,500 for repairs; and $250,000 for construction of suitable buildings. Id.

3. The District of Columbia Appropriation Act for fiscal 1933, 47 Stat. 372 (June 29, 1932) contains the following specific appropriations for Glenn Dale: $240,000 for the completion of erection of suitable buildings. Id.

4. The District of Columbia Appropriation Act for fiscal 1934, 48 Stat. 245 (June 16, 1933), contains the following specific appropriations for Glenn Dale: $25,000 for personal services, maintenance and necessary expenses; and $45,000 for furnishing and equipment and the purchase of a vehicle. Id.

5. The District of Columbia Appropriation Act, 48 Stat. 870 (June 4, 1934), contains the following specific appropriations for Glenn Dale: $51,498 for salaries; $30,-000 for provisions, fuel, forage and the like; and $2,000 for repairs. Id.

6. The District of Columbia Appropriation Act for fiscal 1935, 49 Stat. 365 (June 14, 1935), contains the following specific appropriations for Glenn Dale: $77,410 for salaries; $67,000 for provisions, fuel, forage and the like; $2,000 for repairs; and $40,000 for purchase of furniture and equipment. Id.

7. The District of Columbia Appropriation Act for fiscal 1937, 49 Stat. 1880 (June 23, 1936), contains the following specific appropriations for Glenn Dale: $116,350 for salaries; $85,000 for provisions, fuel, forage and the like; and $2,000 for repairs. Id.

8. The District of Columbia Appropriation Act, 50 Stat. 218 (May 28, 1937), contains the following specific appropriations for Glenn Dale: a reappropriation of the unexpended balance of $80,000 from the fiscal 1937 appropriation. Id.

9. The District of Columbia Appropriation Act for fiscal 1938, 50 Stat. 376 (June 29, 1937) contains the following specific appropriations for Glenn Dale: $325,440 for salaries; $203,000 for provisions, fuel and the like; and $13,000 for repairs and improvements. Id.

10. The District of Columbia appropriations acts for subsequent years contain similar line item appropriations for Glenn Dale. See e.g. 52 Stat. 174-75 (April 4, 1938); 53 Stat. 1022 (July 15, 1939); 54 Stat. 323 (June 12, 1940). Id.

11. Each of the aforementioned appropriations acts contains an introductory paragraph indicating that the money to finance the specific budget items is derived from two sources: Local District of Columbia tax revenues deposited in the U.S. Treasury; and a specific amount of general federal revenue commonly known as the “federal payment.” See Paper # 14, ex. D.

E. Actual purchase and improvement of the Glenn Dale property

1. By deeds, pursuant to the Acts of March 1, 1929 and April 18, 1930, the United States acquired a site for the children’s tuberculosis sanatorium in Prince George’s County, Maryland. Act of March 1, 1929, Ch. 422, 45 Stat. 1425 (1929); Act of April 18, 1930, Ch. 186, 46 Stat. 218-19 (1930). On August 14, 1930, Mrs. Margaret Sharman, a widow, conveyed to the United States a portion of the site for the consideration of $42,650. See, Land Records: Prince George’s County, Maryland; Deed taken from Liber 359 at Folio 16 (1930). (Copy attached to Paper # 1). Another portion of the site was acquired by the United States from Daniel E. Lloyd and Anna Belle Lloyd, husband and wife, on September 4, 1930 for the consideration of $15,250. See Land Records: Prince George’s County, Maryland; Deed taken from Liber 359 at Folio 18 (1930). (Copy attached to Paper # 1).

2. Pursuant to the provisions of the Act of April 18,1930 which authorized $625,000 for site acquisition, construction of buildings and structures, approaches and roadways installation of heating and ventilating apparatus; and provision of furniture, equipment and accessories, the children’s tuberculosis sanatorium (Glenn Dale Hospital) was established on the Prince George’s County site and opened in 1934. Paper # 14, ex. C.

3. Between 1930 and the 1983 fiscal year, in total, the United States of America contributed $3,796,735,292 in federal payments to the budget of the District of Columbia. A portion of these federal tax dollars was used for all necessary expenses, maintenance and improvements at the Glenn Dale Hospital. Paper # 8, ex. F. See also, STAFF OF HOUSE COMM. ON DISTRICT OF COLUMBIA, 96TH CONG. 1ST SESS., THE FEDERAL PAYMENT TO THE DISTRICT OF COLUMBIA: 1790-1980: A REFERENCE COMPENDIUM OF DOCUMENTS, STUDIES, REPORTS, AND PROPOSALS at 21.

4. The District of Columbia utilized the Glenn Dale Hospital for medical purposes for several years. Paper # 14, ex. C.

5. In 1982, the Department of General Service, D.C. published a Notice-Of-Intent to Lease the Glenn Dale Hospital. The District of Columbia later withdrew this notice. See Paper # 1, ex. E, documents attached to the complaint.

6. In the week of December 19-23, 1983, a second Notice-Of-Intent to lease the Glenn Dale Hospital was published. See Paper # 1, ex. F-l, et seq.

7. On March 12, 1984 the United States filed a Verified Complaint for Ejectment and Writ of Assistance.

2. Conclusions of Law

The United States bases its claim that it is entitled to possession of the disputed property on the language of the deeds by which Margaret Sharman and Daniel Lloyd and his wife conveyed their property and on the language of Public Law Nos. 70-873, 45 Stat. 1425 (1929) and 71-144, 46 Stat. 218 (1930). It argues that the language of these documents reflects a conditional grant which permitted the District to use and possess the land as a tenant as long as the land was used for its intended purpose, as a tuberculosis sanatorium. In light of the fact that the property is no longer being used for any medical purpose, the United States asserts that it has become surplus property within the meaning of the Federal Property and Administrative Service Act, 63 Stat. 377, as amended, 40 U.S.C. §§ 471-484, and that the District must relinquish possession to the GSA.

The District does not dispute that the United States holds legal title to the property. Instead, it argues that legal title is not dispositive in this case. It submits that, because the property was purchased with “District monies”, the United States holds the property as a purchase money resulting trustee on behalf of the District. Hence, the District is the equitable owner of the property and, as such, should be permitted to lease or otherwise use the property in a manner in which it sees fit.

A. Purchase money resulting trust

A purchase money resulting trust is a type of implied trust. It occurs where

one pays the consideration for a transfer of real or personal property, but has the title taken in the name of another ... [In such a case] it is presumed or inferred that the payor intended the grantee to be a trustee for the payor.

G.G. Bogert and G.T. Bogert, Law of Trusts (5th ed.) § 74 (“Bogert & Bogert”). In the absence of a federal common law of trusts, the court must look to the law of Maryland for the standards the District must meet to successfully assert a purchase money resulting trust in this case.

In Levin v. Levin, 43 Md.App. 380, 405 A.2d 770 (1979), the Maryland Court of Special Appeals noted that a resulting trust rests on the presumed intent of the parties. It may arise when the consideration given for a piece of property is furnished by one party while the legal title is taken by another, provided the circumstances surrounding the transaction do not demonstrate a contrary intent. 43 Md.App. at 387, 405 A.2d 770. The party seeking to establish a resulting trust has the burden of doing so by “clear and convincing evidence.” Id. He may meet this burden with the introduction of parole evidence, but the court will view such evidence “with great caution because it impeaches a document executed according to law and recorded as evidence of title.” Taylor v. Mercantile Safe Deposit and Trust Co., 269 Md. 531, 539, 307 A.2d 670 (1973). Such parole evidence may include “what the payor said as to his intent before or at the time of the deed” as well as “the conduct of the parties with relation to the possession of the realty and the benefits and burdens thereof after the delivery of the deed.” 269 Md. at 540, 307 A.2d 670, citing, Bogert, Trusts and Trustees (2d ed. 1964).

Plaintiff continues to assert, as it did in the motion for preliminary injunction, that parole evidence of the parties’ actions and intentions after the conveyance should not be considered citing Levin, Eastover Stores, Inc. v. Minnix, 219 Md. 658, 150 A.2d 884 (1959), and Pumphrey v. Kehoe, 261 Md. 496, 276 A.2d 194 (1971). The statement to that effect in Levin is taken from an earlier Maryland Court of Appeals case, Lacey v. Van Royen, 259 Md. 80, 89, 267 A.2d 91 (1970). The Maryland court’s more recent Taylor opinion contains a different view on the relevance of post-deed parole evidence. The Eastover and Pumphrey cases do not involve purchase money resulting trusts in real property and are, therefore, distinguishable. The court continues to believe that the approach outlined in Taylor is correct and it will consider otherwise admissible parole evidence. See Restatement (Second) of Trusts § 440 Comment C (1959).

The court believes there are two critical issues on which' the District must prevail. First, it must show that it paid the purchase price of the Glenn Dale property in 1930. Second, it must demonstrate that, at the time of the conveyance, the parties intended the United States to hold the property in trust for the benefit of the District. It must make both of these showings by clear and convincing evidence.

B. Source of funds for the Glenn Dale acquisition and improvements

Ordinarily, a determination of who paid the funds used to acquire a piece of property is fairly simple. In this particular case, however, that determination is made more complicated by the special relationship between the District and the federal government. In support of its position that federal funds and not “District monies” were used to purchase Glenn Dale, the United States argues that the monies in question were not raised by the District but were appropriated by Congress and designated for the Glenn Dale acquisition. The District responds that the United States’ position reflects ignorance of the appropriation process for the District.

The money required to finance the District’s budget comes from two sources: 1) local tax revenues collected from District residents and individuals purchasing goods within the District; and 2) a federal payment. The federal payment is a lump sum payment which the United States provides to the District in lieu of tax. The federal payment is generally understood as compensation for the erosion of the District’s tax base and the use of its services by the federal government. Paper # 8, ex. F at 1, ex. G at 8,11-12; see generally STAFF OF HOUSE COMM. ON THE DISTRICT OF COLUMBIA, 96TH CONG. 1ST SESS., THE FEDERAL PAYMENT TO THE DISTRICT OF COLUMBIA: 1790-1980; A REFERENCE COMPENDIUM OF DOCUMENTS, STUDIES, REPORTS, AND PROPOSALS (Comm. Print 1979), 5-22.

During the years when the Glenn Dale property was being acquired and improved, Congress approved or “authorized” line items of the District of Columbia budget. D.C. Code § 1-801 (1940). Public Law Nos. 70-873, 45 Stat. 1425 (1929) and 71-144, 46 Stat. 218 (1930) are examples of substantive authorizing legislation. Before the then-Commissioners could expend any funds for specific projects, however, Congress also had to appropriate funds for that purpose. Congress enacted appropriation legislation at least yearly. The appropriated funds came, as indicated earlier, from local tax revenues and a federal payment. The funds for Glenn Dale were appropriated as part of comprehensive District of Columbia appropriations bills. Paper # 14, ex. B.

The parties do not disagree that the underlying statutes provide for the above-described two-step process. They part company, however, over the proper characterization of the federal payment. The United States submits that the federal payment constitutes “federal money” while the District contends that .it is “District money.” In spite of the United States’ contrary assertion, the court believes that this issue presents a question of law and not of fact.

The court has examined the various statutes establishing the federal payment and secondary sources published by both the federal government and the District. None of these sources establish any legal duty on the part of the federal government to fund a portion of the District’s budget. All indicate, however, that the federal payment is compensatory, and not merely a gift. By providing a portion of the revenues required to run the city, the federal government makes up for the tremendous erosion in the District’s tax base caused by the presence of large, nontaxable tracts of real estate. The federal payment also compensates for the demand on city services made by the large number of federal institutions and employees. In the early years of the republic, there was disagreement in Congress over whether the federal government should provide the District with any funds at all. This controversy has given way in the last century to a tacit acknowledgment of an equitable obligation to provide some funds to the District. The current controversy, which is also the one which prevailed at the time of the Glenn Dale acquisition, is “how much” rather than “to give or not to give.”

The federal government points out that the District is not permitted to retain unexpended appropriations. It contrasts that situation with unspent federal grant monies which Congress permits the District and state recipients to retain. It concludes that, while grant money may properly be called “District money”, appropriations cannot. The court does not believe the comparison is as powerful as the plaintiff suggests. In the grants context, Congress, acting in its role as a national legislature, has chosen to treat the District as a state. In the appropriations context, Congress is instead acting as a legislature for the District. In that role, it has chosen to maintain control over revenues by providing that unspent appropriations be returned to the federal treasury. In this instance the federal treasury is also the District treasury. The exercise of such control by Congress, acting as the District’s legislature, is not inconsistent with characterizing the federal payment as “District money.”

Even assuming that the federal payment is “District money”, the United States makes a further argument. It submits that the District is some sort of “federal agency” for budget purposes such that its money is really federal money. There are several problems with this line of argument. Nothing in article 1, section 8 of the Constitution indicates that the Congressional power to legislate for the District transforms the federal city into a federal agency. John McShain, Inc. v. United States, 179 Ct.Cl. 632, 375 F.2d 829, 831 (Ct.Cl. 1967). Even at a time when the District had less autonomy than it has today, the Supreme Court expressly held that the city was not a federal agency. In Metropolitan Railroad Co. v. District of Columbia, 132 U.S. 1, 7-8, 10 S.Ct. 19, 21-22, 33 L.Ed. 231 (1889), the Court said:

[T]he counsel for the plaintiff contend that the government of the District of Columbia is a department of the United States government, and that the corporation is a mere name, and not a person in the sense of the law, distinct from the government itself. We cannot assent to this view.

There is also no statutory basis for characterizing the District as an agency. The Federal Property and Administrative Service Act, 63 Stat. 377, as amended, 40 U.S.C. § 471 et seq., which authorizes the GSA to dispose of surplus federal property, treats the District as a state for purposes of receiving surplus property. See e.g. 40 U.S.C. § 484(j)(5). Nowhere in that Act is the District treated as a federal agency. At oral argument, counsel for the United States suggested that §§ 441-452 of the District of Columbia Self-Government and Governmental Reorganization Act, 87 Stat. 798 (1973) support the notion that the Dis-. trict is an agency for budgetary purposes. The court has reviewed these sections of the District charter and has concluded that they do not support the United States’ position. These sections set out the procedures which the Mayor and City Council must follow in putting together the District budget. They do not refer to the District as any species of federal property. In fact, a 1981 amendment to the definitional section of the Act negates any inference of agency status and further supports the District’s position. The amendment provides, in relevant part that

(1) The term “District revenues” means all funds derived from taxes, fees, charges, and miscellaneous receipts, including all annual Federal payments to the District authorized by law, and from the sale of bonds. (Emphasis supplied).

95 Stat. 1493 (1981).

After evaluating the statutory and interpretative evidence, the court has concluded, as a matter of law, that the federal payment is properly characterized as “District money” for purposes of the first prong of the purchase money resulting trust analysis. Since the money used to purchase and improve the Glenn Dale property was derived from both local District tax and charges revenues and a federal payment, the court finds that the District, and not the federal government, paid the total purchase price and provided funds for improvement and maintenance.

C. The intent of the parties

In addition to demonstrating that District funds were used to purchase the Glenn Dale property, the District must also show that the parties, in this instance Congress and the District of Columbia commissioners, intended that a trust relationship arise. Parole evidence is admissible to prove intent. Such evidence may include “what the payor said as to his intent before or at the time of the deed” and “the conduct of the parties with relation to the possession of the realty and the benefits and burdens thereof after the delivery of the deed.” Taylor, supra, 269 Md. at 540, 307 A.2d 670.

In support of its contention that Congress intended the District to be the equitable owner of Glenn Dale, the District points out that the 1929 authorizing legislation contemplated a tuberculosis facility located within the physical boundaries of the District. That statute contained no reference to title being taken in the name of the United States. It was only after the commissioners determined that no suitable site existed within the District that Congress added the provision regarding title. Portions of a 1930 Senate report are illustrative.

It is of primary importance that before the construction of any building or buildings be discussed that consideration be given to the question of a proper site for the sanatorium. In the interest of economy, serious consideration has been given to the utilization of property already owned by the District of Columbia. The sites most frequently mentioned were land north of the Tuberculosis Hospital and at the Gallinger Hospital site. It is appreciated, that, if either of these locations were selected, there would be a saving of the purchase price of a new site and of part of the operating and supervisory expenses. The committee was impressed with these considerations and felt that, if entirely satisfactory conditions were found for the establishment of a children’s tuberculosis sanatorium on District-owned property such a site would be selected... The committee feels that there is no site in the District that would properly serve as a site for this sanatorium, and therefore recommends that a site ... be purchased. Such a site of 100 or more acres may be obtained on the outskirts of the city or in Maryland or Virginia within 5 or 10 miles from the city limits, filling all the requirements____ (Emphasis supplied).

S.Rep. No. 263, 71st Cong., 2d Sess. 4-5 (March 12, 1930). The absence of a provision from the 1929 legislation requiring title to be taken in the name of the United States leads the District to conclude, and the court believes correctly, that Congress expected the District to take title to any property selected within its physical boundaries.

Of course, the District must explain why Congress added the title provision. In this connection, it argues that the title provision was an accommodation to the District because it allowed for the use of federal condemnation powers to acquire the land. The relevant statutory language is:

That if the land proposed to be acquired as a site for the said sanatorium is without the District of Columbia the title to said property shall be taken directly to and in the name of the United States, and in case a satisfactory price cannot be agreed upon for the purchase of said land, the Attorney General of the United States, at the request of the Commissioners of the District of Columbia, shall institute condemnation proceedings to acquire such lands as may be selected for said site either in the State of Maryland or in the State of Virginia in accordance with the laws of said States, and expenses of procuring evidence of title or of condemnation, or both, shall be paid out of the appropriation herein made for the purchase of said site. (Emphasis supplied).

46 Stat. 218.

The court believes this language supports the District’s position. It clearly indicates Congress intended that the federal condemnation power be available in the event a fair price could not be negotiated. The federal condemnation power was utilized on at least one occasion to acquire additional land and easements for the Glenn Dale facility. Paper # 4, ex. A-l et seq. More persuasive, however, is the portion which provides that the cost of condemnation be paid out of District appropriations. The court has already found that these appropriations constitute “District money.”

The United States has not provided any plausible explanation for its assertion that Congress intended the District to have legal and equitable title to the hospital site if it was situated in the District but that the United States would have legal and equitable title in the event a Maryland or Virginia site were selected. The statute, legislative history, and subsequent conduct of the parties all point to the availability of the condemnation power as the most plausible reason for the title being taken in the name of the United States. By making the condemnation power of the United States available, Congress attempted to insure that the District would make economical use of its appropriations. It also insured that the use of such powers would not be financed out of general federal revenues but out of District appropriations.

Congress has not taken any actions since 1930 with respgct to the Glenn Dale property, aside from enacting yearly District appropriations bills which include funds for operation and maintenance. The only other available information on Congressional intent, therefore, is Congress’ treatment of similarly situated pieces of property. The District has identified two pieces of property which it believes are analogous to Glenn Dale: Belvoir and Muirkirk.

The Belvoir tract was the second major acquisition of property for a District of Columbia prison facility in suburban Virginia. The site selected was near Mount Vernon, the home of George Washington. It was purchased in 1910 with District of Columbia appropriations and title was taken in the name of the United States. See Paper # 12, ex. B (Act of March 3, 1909, 35 Stat. 717). The statutory language respecting title is nearly identical to that found in the 1930 Glenn Dale legislation.

The titles to the tracts of land____shall be taken directly to and in the name of the United States; and in case satisfactory price cannot be agreed upon for the purchase of either or both of said tracts, or in case the title to either or both of said tracts cannot be made satisfactory to the Attorney-General of the United States, then the latter is directed to procure said tract or tracts of land by condemnation, and the expenses of procuring evidence of title, or of condemnation, or both, shall be paid out of the appropriations made for the purchase of the tracts.

Act of August 5, 1909, 36 Stat. 122.

In 1912 the United States determined to take possession of Belvoir, possibly because Congress believed that the proposed prison was too close to a national shrine. The United States did not seek to regain possession as it did in the instant case. Instead, Congress enacted special legislation transferring jurisdiction to the United States and appropriating some $33,000 to compensate the District for the loss of the property. The statute provided in relevant part that:

... There is hereby appropriated, out of any money in the United States Treasury not otherwise appropriated, the sum of thirty-three thousand dollars to reimburse the government of the District of Columbia for the site acquired for a reformatory for the District of Columbia, which site is hereby transferred to the Secretary of War for such purposes as may be hereafter specifically authorized by Congress, and the jurisdiction now vested in the Commissioners of the District of said site, being that certain parcel of land in the county of Fairfax, State of Virginia, known as “Belvoir” or the “White House” tract, containing fifteen hundred acres, is hereby transferred to the Secretary of War ... (Emphasis supplied).

Paper # 12, ex. E (Act of August 24, 1912, 37 Stat. 590). The District argues that the appropriation of $33,000 indicates Congressional recognition of the District’s equitable title to Belvoir, and by analogy, to Glenn Dale.

The second arguably analogous property was located in suburban Maryland. Pursuant to Public Law 67-457, 42 Stat. 1327, 1358 the District, through the President of the Board of Trustees of the National Training School for Girls of the District of Columbia, acquired a tract of land in Muir-kirk, Maryland for use by the National Training School for Girls. Title was taken in the name of the United States in 1923 in accordance with the following statutory language.

... The title to the said property shall be taken directly to and in the name of the United States; and in case a satisfactory price cannot be agreed upon for the purchase of said land, or in case the title cannot be made satisfactory to the Attorney General of the United States, then the latter is directed to acquire said tract of land by condemnation and the expense of procuring evidence of title, or of condemnation, or both, shall be paid out of the appropriation herein made for the purchase of said tract.

Paper # 12, ex. G (Pub.L. No. 67-457, 42 Stat. 1327, 1358).

The District used the Muirkirk facility as a training school until 1934. It was then used by the Department of Agriculture for reclamation work until 1942. In 1942, the War Department leased the property from the District for use as a training center. The District used the property again briefly from 1946 to 1949. Thereafter the property was unused.

In 1970 the District requested authorization from Congress to dispose of the Muir-kirk property. Congress gave the District the requested authorization to sell the property pursuant to Public Law 92-196. See Paper # 12, ex. J.

The District has presented Congressional and GSA documents which indicate that Senator Mathias of the Senate Judiciary Committee consulted GSA about the propriety of allowing the District to sell the Muir-kirk property and retain the proceeds. See Paper # 16 (letter from the Hon. Charles Mathias, dated Aug. 10, 1971). In his response to that letter, Harold S. Trimmer, .Jr. Assistant Administrator of the GSA, indicated that the information he was able to secure from the Office of Management and Budget (“OMB”) and the District government “supports ownership in fact by the District of Columbia since the property was acquired with the funds of and for the use of that jurisdiction.” Id. (letter from Harold Trimmer, dated Nov. 22,1971). Mr. Trimmer informed Senator Mathias that the GSA “ha[d] no objection to the provisions of [the bill] authorizing the sale of the property for the benefit of the District of Columbia.” Id. The committee report accompanying Public Law 92-196 indicates that Congress agreed with the GSA position. Its only stated concern in permitting the sale was whether or not the District had duly considered all other possible beneficial uses that it could make of the property. See Paper # 12, ex. K.

In addition to its argument that parole evidence is not admissible, which the court has already addressed, the United States asserts that the Belvoir and Muirkirk cases are irrelevant to the instant inquiry. The court disagrees. The authorization and appropriation legislation which preceded the purchase of these tracts contains language which is virtually identical to that found in the corresponding Glenn Dale legislation. All three tracts were acquired when the District was operating under a commissioner form of government. All contain the reference to condemnation and stipulate that the costs of such condemnation will be paid out of District appropriations. The court believes that, in the absence of direct Congressional action regarding Glenn Dale, it is appropriate to look to action taken with respect to other properties. The court finds it particularly persuasive that, in both the Belvoir and Muirkirk cases, Congress recognized the District’s equitable interests. In the former case, it enacted compensatory appropriations and in the latter, it allowed the District to sell the property and retain the proceeds.

The court recognizes that the situation before it is not the standard situation faced by other courts in determining the existence of a purchase money resulting trust. In the usual case, the intent of both parties is crucial. Here it is the intent of Congress which is paramount. Nonetheless, the court wishes to note that there is ample and unchallenged evidence that the commissioners understood they were acquiring and improving the property as equitable owners. See Paper # 4, ex. B-E. In addition, the District took several types of actions over the years which are consistent with equitable ownership. It leased a portion of the Glenn Dale land to a local farmer. Paper # 4, ex. G-L. It also granted an easement to the Washington Suburban Sanitary Commission. Id., ex. M. These types of actions are not normally associated with a tenancy.

In conclusion, the court believes there is ample uncontroverted evidence that Congress intended the District to have an equitable interest in the Glenn Dale property. That interest is best characterized as a purchase money resulting trust. In the ordinary case, the successful resulting trust claimant, here the District, is entitled to a decree that the trust exists and that the trustee convey to the claimant, G.G. Bogert & G.T. Bogert, Law of Trusts (1973) § 75 at 281; see also P. Powell & P. Rohan, Powell on Real Property (1982) ¶ 920. The District seeks only a declaration that the trust exists and that it is entitled to possess and use the property as it sees fit until Congress legislates to the contrary. It does not seek a transfer of title. The court believes the District’s request for relief is proper in light of the special circumstances of this case. It may be that Congress, acting in its role as the District’s legislature, may take some action with respect to the title and possession of Glenn Dale in the future. The court’s opinion in this matter is not intended to circumscribe such action.

      . The federal payment is an annual appropriation by Congress to the District of Columbia to compensate the District for revenue loss from federally owned properties which are not subject to District taxation. See infra part B.

      . Like the Glenn Dale authorizing statutes, the original Belvoir authorization did not explicitly provide for District jurisdiction over the property-

      . The plaintiff objects to the supplemental memorandum defendant submitted with the letters discussed above. See Paper # 17. It has moved to strike that document. In reaching its decision on the cross motions for summary judgment the court did not consider the supplemental memorandum. It relied merely upon the stipulation and attached letters. The motion to strike is, therefore, moot. The court agrees that the additional memorandum was untimely, however, and it will grant the motion to strike.


source: Caselaw Access Project

author: MYRON H. THOMPSON, District Judge.

license: Public Domain

text:
    Gayle PARKER, Plaintiff, v. George C. WALLACE, as Governor, the State of Alabama; and James C. White, Sr., as Commissioner, the Department of Revenue, Defendants.
    Civ. A. No. 83-T-195-N.
    United States District Court, M.D. Alabama, N.D.
    Oct. 10, 1984.

      Julian McPhillips, and Dexter Hobbs, Copeland, Franco, Screws & Gill, Montgomery, Ala., for plaintiff.
    Richard N. Meadows, Rosa H. Davis, Asst. Attys. Gen., Montgomery, Ala., Ken Wallis, Legal Advisor to the Governor, Montgomery, Ala., for Wallace.
    John J. Breckenridge and Melissa C. Bowen, Asst. Attys. Gen., Montgomery, Ala., for White.
   MEMORANDUM OPINION

MYRON H. THOMPSON, District Judge.

This lawsuit is, for the most part, a challenge to the political patronage process for the appointment of county license inspectors for the State of Alabama. The plaintiff, Gayle Parker, claims that she was discharged as an inspector for Montgomery County, Alabama for reasons of political affiliation, in violation of the first and fourteenth amendments to the U.S. Constitution. For reasons that follow, the court has concluded that her claim has merit and that she is thus entitled to appropriate relief.

I.

Approximately 48 of Alabama’s 67 counties have license inspector positions. According to statute, the inspectors are appointed for indefinite terms by the state commissioner of revenue. The inspectors are responsible for assuring that all persons, firms, and corporations required by law to obtain licenses have done so. Although they have substantial enforcement powers, including the authority to arrest, the inspectors have very little discretion in handling individual cases. For example, they are required by law to issue citations to those who are delinquent in obtaining the required licenses and to institute criminal proceedings against.all delinquents who fail to obtain the required licenses after they have been cited. However, they have broad discretion in the overall management of their offices. They are authorized to hire personnel, including deputy inspectors, and they are responsible for setting policies and formulating plans for their offices, subject to the approval of the revenue commissioner. 1975 Ala.Code § 40-12-10.

By local law applicable only to Montgomery County, the county commission is responsible for paying the inspector’s salary and for financing the operation of the inspector’s office. The county receives “[a]ll fees, commissions, allowances, percentages and other charges” received by the inspector. 1978 Ala.Local Act No. 385.

Although the state commissioner of revenue is authorized by law to appoint the inspectors for an indefinite period, it has been the practice that each new governor appoints new inspectors across the state. Therefore, in 1979, when Forest James succeeded George C. Wallace as governor of the State of Alabama, he adhered to this practice even though both he and Wallace were of the same political party, the Democratic Party. James replaced the Wallace inspector appointee for Montgomery County with his own appointee, plaintiff Gayle Parker. Parker and her husband had actively supported James in the last election.

In 1983, Wallace became governor again. He replaced all but four or five of the persons then holding inspector positions. He appointed, without exception, those persons recomended by his county campaign coordinators. A critical requirement for a recommendation from a coordinator was demonstrated political support for Wallace in the last election. Parker did not campaign for Wallace. She was replaced by Nancy Hendry, who had actively campaigned for Wallace and had been recommended by Wallace’s campaign co-coordinators for Montgomery County.

Parker refused to go along with the appointment practice and filed this lawsuit seeking, among other things, reinstatement to her job, backpay, and attorney fees.

II.

Plaintiff Gayle Parker’s lawsuit is premised on 42 U.S.C.A. § 1983 and is against defendants George C. Wallace and James C. White, Sr., the governor and revenue commissioner of the State of Alabama, respectively. As already stated, she claims that the defendants discharged her from her position as license inspector for Montgomery County for reasons of political affiliation, in violation of the first and fourteenth amendments to the U.S. Constitution. This court’s jurisdiction has been properly invoked pursuant to 28 U.S.C.A. § 1343.

It is now “settled that a state cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.” Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708 (1983). Thus, “official pressure upon employees to work for political candidates not of the worker’s own choice constitutes a coercion of belief in violation of fundamental constitutional rights.” 461 U.S. at 149, 103 S.Ct. at 1691. On the other hand, it is well recognized that the state, as employer, has an interest “in promoting the efficiency of the public services it performs through its employees.” 461 U.S. at 142, 103, S.Ct. at 1687, quoting Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968).

A.

The first issue for the court in weighing and considering these competing interests is whether Parker was, in fact, discharged for partisan political reasons. The court finds that she was.

As plaintiff, Parker has the initial burden of proof of establishing by a preponderance of evidence that political affiliation was a substantial or motivating factor in the decision to discharge her. If she meets this burden, the burden of proof shifts to the defendants to show by a preponderance of evidence that they would have reached the same decision if political affiliation had not played a role. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1976). See also Branti v. Finkel, 445 U.S. 507, 512 n. 6, 100 S.Ct. 1287, 1291 n. 6, 63 L.Ed.2d 574 (1980); Tanner v. McCall, 625 F.2d 1183, 1190-95 (5th Cir.1980).

Parker has established that political affiliation played a substantial and motivating role in the decision to discharge her. The evidence reflects that when Wallace became governor in 1983, he followed the past practice of replacing license inspectors who served under the former administration. Wallace’s appointments were based, without exception, upon recommendations from his county campaign coordinators. These recommendations were usually purchased at the price of campaign work. See Branti v. Finkel, 445 U.S. at 516 n. 11, 100 S.Ct. at 1294, n. 11. This appointment process was but a form of political patronage. See Elrod v. Burns, 427 U.S. 347, 353-54, 96 S.Ct. 2673, 2679-80, 49 L.Ed.2d 547 (1976) (plurality opinion).

Parker’s dismissal was a product of this patronage process. Parker did not openly demonstrate any support for Wallace and was dismissed; whereas, Hendry actively campaigned for Wallace and was recommended for and appointed inspector based on her demonstrated political support for Wallace. No consideration was given to Parker’s ability and past record as license inspector. With this evidence, it cannot be seriously contested that political affiliation played, at least, a substantial and motivating role in Parker’s dismissal. See Branti v. Finkel, 445 U.S. at 516-17 & n. 11, 100 S.Ct. at 1293-94 & n. 11.

Nonetheless, the defendants maintain that Parker would have been dismissed in the absence of partisan politics. The court disagrees. First, the defendants contend that Parker was a poor license inspector. However, the evidence reflects that Parker was a conscientious, effective inspector, who performed the duties of her office exceptionally well. Furthermore, the evidence reflects that any consideration the defendants gave Parker’s performance came long after she was dismissed and Hendry appointed. The defendants’ challenge to Parker’s performance record and ability is a pretextual afterthought.

Second, the defendants contend that they appointed Hendry because of her financial circumstances. The evidence does reflect that Hendry needed a job to support her family. However, Hendry’s financial condition was a critical factor only in selecting her over other active Wallace supporters and campaigners. The bottom line for appointment to the inspector position in Montgomery County was recent active support for Wallace and a recommendation from Wallace’s county campaign co-coordinators. In the absence of partisan politics, the defendants would not have appointed Hendry, who had no experience as a license inspector and simply needed a job. Rather, they would have retained Parker, who had direct experience and an excellent record as a license inspector.

B.

Now that the court has found that Parker was dismissed for patronage reasons, the critical issue is whether the dismissal violated her rights under the first and fourteenth amendments to the U.S. Constitution. The court finds that it did.

In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court addressed for the first time the specific issue of patronage discharges and held that certain non-civil-service employees of a sheriff’s office could not be dismissed because they were not affiliated with or sponsored by the political party of the current sheriff. A majority of the Court concluded in plurality and concurring opinions that the first and fourteenth amendments prohibited the discharge of a nonpolicymaking, nonconfidential government employee on the sole ground of party affiliation. 427 U.S. at 367-68, 96 S.Ct. at 2687 (Brennan, J., plurality opinion); 427 U.S. at 375, 96 S.Ct. at 2690 (Stewart, J., concurring). In his plurality opinion for the Court, Justice Brennan observed that

patronage dismissals severely restrict political belief and association. Though there is a vital need for government efficiency and effectiveness, such dismissals are on balance not the least restrictive means for fostering that end. There is also a need to insure that policies which the electorate has sanctioned are effectively implemented. That interest can be fully satisfied by limiting patronage dismissals to policymaking positions. Finally, patronage dismissals cannot be justified by their contribution to the proper functioning of our democratic process through their assistance to partisan politics since political parties are nurtured by other, less intrusive and equally effective methods. More fundamentally, however, any contribution of patronage dismissals to the democratic process does not suffice to override their severe encroachment on First Amendment freedoms. We hold, therefore, that the practice of patronage dismissals is unconstitutional under the First and Fourteenth Amendments ____

427 U.S. at 372-73, 96 S.Ct. at 2689.

Later, in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287 (1980), the Supreme Court clarified the circumstances where a policy-making or confidential government employee may be dismissed on the basis of party affiliation. In a majority opinion, the Court concluded that “the ultimate inquiry is not whether the label policymaker or confidential fits a particular position; rather, the question is whether 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, 100 S.Ct. at 1295. Thus, the rule of Elrod and Branti is that a government employee may not be dismissed for reasons of political party affiliation unless party affiliation is an appropriate requirement for the effective performance of the employee’s duties.

In Branti, the Supreme Court held that assistant public defenders could not be discharged on the basis of party affiliation. The Court observed that although the assistants “had broad responsibilities with respect to particular cases” and “made decisions in the context of specific cases,” 445 U.S. at 511, 100 S.Ct. at 1291, their area of discretion “relate[d] to the needs of individual clients and not to any partisan political interests,” 445 U.S. at 519, 100 S.Ct. at 1295. The Court also observed that although assistants are “bound to obtain access to confidential information arising out of various attorney-client relationships, that information has no bearing whatsoever on partisan political concerns.” Id. The Court, therefore, concluded that political affiliation or allegiance to a party was not an appropriate requirement for the office of assistant public defender. Id.

Admittedly, the Branti and Elrod cases involved employment decisions based upon political affiliation to a party. Here, the issue is political affiliation to a candidate. This difference is not significant. Employment requirements of affiliation to a candidate are subject to the same first amendment considerations as requirements of affiliation to a party. McBee v. Jim Hogg County, Texas, 703 F.2d 834, 838 n. 1 (5th Cir.1983), vacated on other grounds, 730 F.2d 1009 (5th Cir.1984) (en banc).

In the present case, the defendants correctly note that Parker is a part of the executive branch of state government and that, subject to the approval of the revenue commissioner, she is empowered to set policies for her office and formulate plans for the implementation of those policies. They note that she must also work with the Montgomery County Commission, which is responsible for financing her office. The defendants argue that Parker is, for the most part, an emissary of the governor. And they ask that the court infer from these circumstances that political affiliation to the governor is an appropriate ingredient for the effective performance of her office. See, e.g., Sweeney v. Bond, 669 F.2d 542, 546 (8th Cir.), cert. denied, 459 U.S. 878, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982). See also Ness v. Marshall, 660 F.2d 517, 520-22 (3rd Cir.1981); Newcomb v. Brennan, 558 F.2d 825, 829-30 (7th Cir.), cert. denied, 434 U.S. 968, 98 S.Ct. 513, 54 L.Ed.2d 455 (1977).

If such inference could reasonably be made, it is soundly refuted by those who are most knowledgeable about the operation of the office of license inspector. Wallace, who has occupied the office of Governor of the State of Alabama for much of the last 25 years, testified in this case that, although license inspectors have substantial discretion in the administration of their office, political affiliation to a party or person is not necessary to the effective performance of the office. Similarly, the present and immediate past state revenue commissioners' and the present and immediate past Montgomery County license inspectors testified that political affiliation is immaterial to the effective performance of the office of license inspector. It is implicit from the testimony of these officials that “less drastic means for insuring government effectiveness and employee efficiency are available to the State. Specifically, [license inspectors] may always be discharged for good cause, such as insubordination or poor job performance, when those bases in fact exist.” Elrod v. Burns, 427 U.S. at 366, 96 S.Ct. at 2686. Moreover, the evidence reflects that although license inspectors have access to much confidential information in the performance of their duties, “that information has no bearing whatsoever on partisan political concerns.” Branti v. Finkel, 445 U.S. at 519, 100 S.Ct. at 1295.

Confronted with this evidence, this court must conclude that, while Parker has policymaking responsibilities and access to confidential information, political affiliation or allegiance to a party or person is not an appropriate requirement for the effective performance of her office. See Branti v. Finkel, supra. The court therefore holds that the defendants’ dismissal of Parker for reasons of political affiliation violated her rights under the first and fourteenth amendments to the U.S. Constitution. Parker is therefore entitled to appropriate relief.

III.

Parker seeks reinstatement to the position of license inspector for Montgomery County. The court is not persuaded that Parker should be immediately reinstated to this position. To reinstate her would require the displacement of an innocent person, Nancy Hendry, who is not a party to this case. However, the court will require that the defendants offer Parker another position in state government in the area of Montgomery, Alabama, for which she is qualified and which has a salary comparable to that of license inspector for Montgomery County — rif such a position is available. The court will also require that the defendants offer Parker the Montgomery County license inspector position when the position becomes available again.

Parker also seeks backpay. She is entitled to an award of backpay to compensate her for the loss of her job. However, the defendants maintain that they are immune from backpay in both their “official” and “individual” capacities.

Any award of backpay from the defendants in their official capacities as state officials, whether viewed as damages for illegally dismissing Parker or an aspect of equitable relief, would be retroactive and must come from the state treasury. Such an award is barred by the eleventh amendment to the U.S. Constitution. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1977); Hander v. San Jacinto Junior College, 519 F.2d 273, 278 (5th Cir. 1975). See also United Carolina Bank v. Board of Regents, 665 F.2d 553, 561 (5th Cir.1982). Therefore, Parker may not recover backpay from the defendants in their official capacities.

The defendants maintain that they are entitled to “qualified immunity” from any award of backpay against them in their individual capacities. Qualified immunity is generally available to persons in their individual capacities “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 816-818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) . The immunity is also available if the persons claiming it can show “extraordinary circumstances and can prove that [they] neither knew nor should have known of the relevant legal standard.” 457 U.S. at 818-19, 102 S.Ct. at 2739. The rule of Elrod and Branti — prohibiting the dismissal of a public employee because of political affiliation except where the affiliation is an appropriate requirement for the effective performance of the employee’s duties — was clearly established at the time Parker was discharged from her position as license inspector for Montgomery County. The defendants have also failed to present any extraordinary circumstances to support a conclusion that they neither knew nor should have known of the rule of these two cases. Furthermore, it is apparent from the testimony of the defendants that they were aware that political affiliation was not a necessary or appropriate requirement for the office of license inspector, and yet they discharged Parker for reasons of political affiliation. Under these circumstances, the court finds that the defendants are not entitled to qualified immunity. Backpay for Parker will therefore be imposed against the defendants in their individual capacities.

Finally, Parker seeks attorney fees from the defendants. Since she is the prevailing party, she is entitled to attorney fees under 42 U.S.C.A. § 1988, determined in accordance with the criteria established in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). See also Blum v. Stenson, — U.S.-, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) . The court will therefore award her attorney fees.

IV.

The court recognizes that the Elrod and Branti decisions of the U.S. Supreme Court have been the object of criticism from some scholars, jurists, and other members of the public. However, this court is not the forum to air such criticisms. Irrespective of the personal opinions of the judge, the lawyers and the parties connected with these proceedings, “fidelity to the concept of ordered liberty under our Constitution requires [this court] to follow Elrod and Branti as controlling interpretations of First Amendment rights.” McBee v. Jim Hogg County, Texas, 730 F.2d 1009, 1026 (5th Cir.1984) (en banc) (Tate, J., concurring).

An appropriate judgment will be entered.

      . Section 40-12-10 provides that:
      (a) The department of revenue is hereby authorized and empowered to appoint a license inspector for each county; provided, that the same person may be appointed for more than one county, except as otherwise provided by law.
      (b) It shall be the duty of the license inspector to scrutinize the records and stubs kept in the office of the probate judge and also to examine the license records of each city or town located in the county or counties of which he has been appointed license inspector; and, if it shall be reported to any license inspector or come to his knowledge that any person, persons, firms or corporations have failed or refused to take out a license for a business or occupation for which a license is required by the state or have failed or refused to take out a license for operating any motor vehicle or trailer for which á license is required by law, the license inspector shall thereupon cite such delinquent to appear before the license inspector at the courthouse of the county in which such citation is issued and to show cause why the license or privilege tax required by law has not been paid and, at the same time, shall file with the probate judge of the county a copy of such citation showing service on the delinquent.
      (c) If the license inspector shall discover any motor vehicle being operated without a proper or legal license, he shall cite the operator of the motor vehicle; and, in filing copy of such citation with the probate judge, he shall show on such citation the particular motor vehicle operated without legal license, as well as the operator thereof.
      (d) The probate judge must in all cases, in addition to the other penalties required to be collected by him, collect the citation fee, if any, due the license inspector before issuing any license; and, in case of a motor vehicle where a license is taken out in the name of person not cited, the citation fee shall be collected if the citation filed shows the motor number of such vehicle. When any license is due the license inspector shall cause the delinquent to appear before the probate judge of the county and take out the same, but such probate judge shall not have the authority to determine the liability of such delinquent for such license and shall in each case issue a license to the applicant upon the payment by him of the amount or amounts prescribed by this title. If such delinquent shall fail or refuse to take out a license, the license inspector shall institute or cause to be instituted criminal proceedings against such delinquent before any court having jurisdiction of such offense. In case of emergency the license inspector must commence the criminal proceedings in the first place.
      (e) All license taxes levied by this title, except as otherwise provided, shall be due and payable as of October 1 of each year and shall be delinquent November 1 thereafter. Where any license issuable by the probate judge or commissioner of licenses shall be delinquent, the same shall be subject to a penalty of 15 percent of the amount of the license, which penalty must be collected by the probate judge or commissioner of licenses when the license is taken out together with interest at six percent from the date of delinquency; provided, that the penalty for delinquency in payment of motor vehicle licenses shall in no case be less than $1.50.
      (f) It shall be unlawful for any probate judge or other officer to fail to collect such penalties when issuing such license.
      (g) The probate judge, in remitting such penalties, shall file report with the comptroller and with the department of revenue showing the amount of such penalties collected, from whom, and for what, the amounts paid to the license inspector and the amount remitted; provided, that in counties where the license inspector is payable on a salary basis, all fees and penalties shall be paid into the treasury, except as otherwise provided by law.
      (h) If a criminal prosecution shall be commenced either by affidavit and warrant, or information or indictment, the license inspector shall be paid 15 percent of the fine or penalty thereafter imposed in the case, all costs and penalties to be paid in money. The residue shall be paid, two thirds into the treasury and one third to the county.
      (i) License inspectors are authorized to appoint deputies, and the acts of such deputies shall be recognized as their acts, and they shall be responsible for the same. Such deputies shall receive no compensation for their services out of the state or county revenue, except in cases as otherwise provided in this title.
      (j) All citations to delinquents shall be served by any lawful officer or by the license inspector or his deputy, who shall be allowed as a fee $1.50 for each citation served, to be taxed against the delinquent.
      (k) License inspectors shall have the same power to arrest persons violating the revenue laws of the state as is now vested in the sheriffs of the state and shall receive the same fees for such service.
      (7) The department of revenue shall keep a record by counties in which, each month, shall be entered the number of licenses issued by the probate judge for each and every business or occupation for which a state license tax is'required, and such record may be compared each month with the number of licenses issued by cities and towns for the same business or occupation.
      (m) The license inspector shall be required to report to the department of revenue the reason for the failure to collect any licenses due the state which may be evidenced by the comparison of the report of the probate judge and the report made of licenses issued by cities or towns.
      (n) It shall be the duty of the county commissions of the several counties to supply the license inspector with necessary citation blanks and other necessary forms to be paid for by the county.
      (o) The salary of such license inspector and the expenses of his office shall be paid by warrant of the comptroller upon sworn itemized account filed monthly by such license inspector and approved by the department of revenue, except as otherwise provided by law.

      . The evidence does not reflect whether other counties with license inspectors have similar local acts.
      The local act for Montgomery County provides that:
      Section 1. The license inspector of Montgomery County shall receive an annual salary of $15,000.00 payable in equal monthly installments from the general fund of the county. Said salary shall be the entire compensation received by the license inspector in any official and ex officio capacity and shall be in lieu of all fees, commissions, allowances, percentages and other charges heretofore paid to the license inspector.
      Section 2. All fees, commissions, allowances, percentages and other charges heretofore collected for the use of the license inspector shall hereafter be collected and paid into the general fund of the county, except as provided hereinafter.
      Section 3. The governing body of Montgomery County shall provide the license inspector with such office personnel, clerks, deputies, and such quarters, books, stationery, furniture, equipment and other such conveniences and supplies as such governing body may consider necessary for the proper and efficient conduct of the office. The compensation of any personnel so provided shall be fixed by said governing body and shall be paid in equal monthly installments out of the general fund of the county.

      . The following letter from Wallace’s Montgomery County campaign co-coordinators, recommending Hendry for the inspector position for Montgomery County, dramatically demonstrates the importance of active political support:
      Dan Chambliss and I strongly recommend Nancy I. Hendry for the above job. We want her to have this job and it is very important to us. She is very capable and will do a fine job.
      Nancy worked with us throughout the entire campaign on a daily basis. She worked at the campaign office from 8:00 a.m. to 5:00 p.m. each day and also at night and weekends. Her entire family was involved in the campaign and they are very much in need of this job.
      If you have any questions, please let me know. We will very much appreciate her appointment to this position.

      . Wallace deposition of September 19, 1983, pp. 7-10.

      . White deposition of August 17, 1983, pp. 28-30.

      . Testimony of Ralph Eagerton at trial.

      . Hendry deposition of August 17, 1983, pp. 37-39.

      . Testimony of Parker at trial.

      . It appears that the only persons connected with this lawsuit who seriously maintain that political affiliation is an appropriate and necessary requirement for the office of license inspector are the defendants' lawyers, but not the defendants.

      . The defendants also argue that Parker as beneficiary of the patronage system should not now be allowed to challenge that system. The Supreme Court has rejected this argument both explicitly, see Branti v. Finkel, 445 U.S. at 512 n. 6, 100 S.Ct. at 1291 n. 6; Elrod v. Burns, 427 U.S. at 359 n. 13, 96 S.Ct. at 2683 n. 13, and implicitly, see Branti v. Finkel, 445 U.S. at 526 n. 6, 100 S.Ct. at 1298 n. 6 (Powell, J., dissenting); Elrod v. Burns, All U.S. at 380-81, 96 S.Ct. at 2692-93 (Powell, J., dissenting).

      . The defendants may want to consider temporarily appointing co-inspectors for Montgomery County. The evidence reflects that there may be enough work in the county for two inspectors.

      . The defendants raised at trial whether they had been sued in their individual capacities. The pleadings in this case reflect unequivocally that they have been so sued. See, e.g., the plaintiff's May 13, 1983, amended complaint and the defendants’ June 1, 1983, answers.
      Also, the court recognizes that the license inspector for Montgomery County is paid by the county commission. See Note 2, supra. However, Parker has not sued the Montgomery County Commission. Thus, any backpay due her may come from only defendant state officials in their official or individual capacities.