Elizabeth Hoard, Administratrix of the
Estate of Russell A. Hoard; Thomas
Bentley; Vernon Muncy; Nancy Wooton; Nos. 97-5540/
Joan Gay; Carl Wooton; Norman Couch; 5585
Elias Collett; Dean Adams; Stevie
Caldwell; Leslie Huff; Martin Muncy;
Ronnie Huff; Ronnie Sizemore; Levi
Muncy; Betty Baker; Clyde Conway
Vance; George Sizemore; and Steve
Collins,
Plaintiffs-Appellees,
v.
Onzie Sizemore, in his individual
capacity as Leslie County
Judge/Executive,
Defendant-Appellant
(97-5540),
Onzie Sizemore, in his official
capacity as Leslie County
Judge/Executive; Ruie Caldwell,
individually and in his official
capacity as Magistrate of Leslie
County, Kentucky; Billy Sizemore, in
his official capacity as Magistrate of
Leslie County, Kentucky; James H.
Boggs, individually and in his
official capacity as Magistrate of
Leslie County, Kentucky; William
Lewis, individually and in his
official capacity as Magistrate of
Leslie County, Kentucky; Leslie County
Fiscal Court; Leslie County, Kentucky,
Defendants-Appellants
(97-5585).
Appeal from the United States District Court
for the Eastern District of Kentucky at London.
No. 94-00472--Jennifer B. Coffman, District Judge.
Argued: June 10, 1998
Decided and Filed: November 17, 1999
Before: BATCHELDER, DAUGHTREY, and GILMAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Sun S. Choy, LANDRUM & SHOUSE, Louisville, Kentucky,
David B. Mattingly, JACKSON & KELLY, Lexington, Kentucky, for
Appellants. Alva A. Hollon, Jr., SAMS & HOLLON, Jacksonville,
Florida, for Appellees. ON BRIEF: Sun S. Choy, LANDRUM & SHOUSE,
Louisville, Kentucky, Allen Button, WILLIAMS & WAGONER,
Louisville, Kentucky, Jason E. Williams, FARMER, KELLEY, BROWN &
WILLIAMS, London, Kentucky, William A. Hoskins, III, John W.
Walters, JACKSON & KELLY, Lexington, Kentucky, for Appellants.
Alva A. Hollon, Jr., John O. Hollon, SAMS & HOLLON, Jacksonville,
Florida, Kenneth A. Buckle, Hyden, Kentucky, for Appellees.
DAUGHTREY, J., delivered the opinion of the court, in which
GILMAN, J., joined. BATCHELDER, J. (pp. 30-35), delivered a
separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. Before us are two
appeals, both related to a § 1983 action in which the plaintiffs
alleged that their First Amendment rights were violated when
Onzie Sizemore, as the newly elected county judge-executive of
Leslie County, Kentucky, intentionally did not re-nominate them
for county employment in retaliation for failing to support his
1993 campaign.(1) There are currently 19 plaintiffs before the
court, all former employees of county offices.(2)
In the first appeal, defendant Onzie Sizemore, in his
individual capacity, contends that the district court erred in
denying his motion for summary judgment on the basis of qualified
immunity. In the second, defendants Leslie County and Leslie
County Fiscal Court, along with Sizemore and two county
magistrates in their official capacities, contend that if this
court finds that Sizemore is entitled to qualified immunity, then
the plaintiffs' claims against them must also be dismissed. To
support this contention, they argue that because the issues are
inextricably intertwined, we should assert pendent appellate
jurisdiction over their appeal, even though the appeal on its own
would not be reviewable.
We conclude that the district court erred in denying
Sizemore summary judgment on the basis of qualified immunity with
respect to four of the plaintiffs, who fail to state a First
Amendment violation because they fall within the Branti v. Finkel
exception for political patronage dismissals. Accordingly, the
claims of these four plaintiffs against the county and other
defendants must be dismissed, because they cannot state a claim
against these defendants if there has been no violation of their
constitutional rights. However, we cannot exercise jurisdiction
at this time over the claims of the remaining 15 plaintiffs,
because the district court determined that a genuine issue of
material fact remains as to what motivated their constructive
discharge. Such a ruling prevents appellate review at this stage
of the proceedings, under the Supreme Court's opinion in Johnson
v. Jones, 515 U.S. 304 (1995). Consequently, we also have no
jurisdiction to consider the appeal of the pendent defendants as
to these 15 plaintiffs.
PROCEDURAL AND FACTUAL BACKGROUND
In the May 1993 Leslie County Republican primary, Sizemore
defeated the incumbent county judge, C. Allen Muncy.(3) Because
there was no opposition from the Democratic party in the November
1993 general election, Sizemore was sworn in as the new county
judge in January 1994. Prior to taking this office, Sizemore had
completed two four-year terms as a magistrate on the Leslie
County Fiscal Court.
During the primary campaign, the plaintiffs openly and
publicly supported Judge Muncy. According to their testimony,
they displayed their support by engaging in activities such as
talking to people throughout Leslie County, putting bumper
stickers on their vehicles, placing signs in their yards, wearing
hats, and attending political rallies. At the end of December
1993, all county employees, including each of the original 22
plaintiffs in this lawsuit, received a memorandum from Sizemore,
which Judge Muncy had allowed Sizemore to insert into the
employees' final paycheck. The memorandum stated: "It is my
understanding that your job in county government will terminate
January 3, 1994. Anyone who is presently employed must be
renominated and rehired by the new administration. Hopefully,
many current employees will be rehired as soon as possible. I
invite you all to reapply for county government. I appreciate
your contribution to Leslie County."
None of the plaintiffs were rehired to work under Sizemore's
administration. They filed a civil rights action against Sizemore
and each of the four magistrates in their individual capacities,
and also against Leslie County, the Leslie County Fiscal Court,
and Sizemore and each of the magistrates in their official
capacities. In this action, the plaintiffs alleged that their
First and Fourteenth Amendment rights were violated by the
defendants because they were terminated from their county
employment for the exercise of their political beliefs and were
not afforded procedural due process. They also argued that their
termination violated state laws and alleged that it was an
unwritten policy or custom in Leslie County to get rid of the
supporters of one's political opponents upon taking office.
After protracted discovery, Sizemore, in his individual
capacity, and the remaining defendants filed motions for summary
judgment, with Sizemore specifically invoking the doctrine of
qualified immunity. On March 31, 1997, the district court granted
in part and denied in part the summary judgment motions. The
court (1) granted the defendants' motions with regard to the
plaintiffs' due process and state law claims; (2) granted the
magistrates, in their individual capacity, summary judgment with
regard to the plaintiffs' First Amendment claims; (3) denied
summary judgment with regard to liability of the county by virtue
of suit against officials in their official capacity with respect
to plaintiffs' First Amendment claims; (4) granted summary
judgment with regard to the First Amendment claims of plaintiffs
Christy Couch Sexton and Marlene Feltner; (5) denied summary
judgment with regard to all remaining plaintiffs' First Amendment
claims; and (6) denied Sizemore qualified immunity. Sizemore and
the other defendants timely filed separate notices of appeal.
The summary judgment record included evidence that it was
the custom in Leslie County for the victor of an election to
"enjoy the spoils" by terminating all of the employees of the
previous administration and hiring back only those the official
wanted. In addition, the parties have devoted a fair amount of
their appellate briefs to discussing the financial condition of
the county when Sizemore took office, which, for reasons
discussed below, is not relevant to our analysis at this stage of
the litigation.
ANALYSIS
I. Plaintiffs Vernon Muncy, Martin Muncy, Russell Hoard, and
Betty Sue Baker and the Branti Exception
A. Jurisdiction
Under the doctrine of qualified immunity, as explained by
the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800 (1982),
government officials engaged in the performance of discretionary
functions are generally "shielded from liability [and, indeed,
from suit] for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known." 457 U.S. at 818
(citations omitted). The defendant, as the movant in a motion for
summary judgment, must show that no genuine issues of material
fact remain that would defeat his claim of qualified immunity,
and the plaintiff carries the burden to allege and prove that the
defendant official violated a clearly established right of which
a reasonable person would have known. See Pray v. City of
Sandusky, 49 F.3d 1154, 1158 (6th Cir. 1995).
In this case, plaintiffs Vernon Muncy, Martin Muncy, Russell
Hoard, and Betty Sue Baker allege that their clearly established
First Amendment rights were violated when they were
constructively discharged on the basis of political affiliation.
Sizemore contends that he should be granted qualified immunity
with respect to these claims because "party affiliation is an
appropriate requirement for the effective performance of the
public offices involved" and, therefore, the plaintiffs have
failed to assert a violation of their First Amendment rights.
Branti v. Finkel, 445 U.S. 507, 518 (1980).
As a threshold matter, the plaintiffs argue that we lack
jurisdiction to review this question, because the district
court's denial of summary judgment on the issue of qualified
immunity was based on its conclusion that "there is still a
question of whether the positions occupied by those individuals
were imbued with the discretionary and/or confidential access to
the Judge-Executive so as to warrant a reasonable belief that the
exception was applicable." A district court's order denying
summary judgment that is based on qualified immunity and turns on
an issue of law is immediately appealable as a final judgment
under the collateral order doctrine. See Mitchell v. Forsyth, 472
U.S. 511, 530 (1985); Walton v. City of Southfield, 995 F.2d
1331, 1335 (6th Cir. 1993). However, as this court has previously
explained, "[u]nder the doctrine of Johnson v. Jones, [515 U.S.
304 (1995),] this court cannot review on interlocutory appeal a
district court's determination that a genuine issue of fact
exists for trial, see Johnson, 515 U.S. at 319, but we retain
jurisdiction over the legal question of qualified immunity, i.e.,
whether a given set of facts violates clearly established law."
Mattox, ___ F.3d at ___, 1999 WL 504579 (6th Cir. July 13, 1999).
We review de novo the district court's denial of qualified
immunity. See id.
In the present case, the jurisdictional question is not
relevant with respect to the first four plaintiffs, because there
is no factual dispute, but rather a dispute about how to
characterize the undisputed evidence in light of the relevant
law. The issue identified by the district court in this case --
"whether the positions occupied by those individuals were imbued
with the discretionary and/or confidential access to the Judge-
Executive so as to warrant a reasonable belief that the exception
[to the rule that employee's cannot be fired on the basis of
political affiliation] was applicable" -- is not a factual
dispute, as the plaintiff argues. Plaintiff mixes the factual
issue of what the job duties of the plaintiffs' positions are
with the purely legal question of whether to characterize those
duties as political and therefore unprotected by the First
Amendment. See Mumford v. Basinski, 105 F.3d 264, 271 (6th Cir.)
("[T]he unique duties of a particular office holder are typically
fact driven. However, the "characterization of the position's
general or specific duties as nonpolitical or political is a
question of law.") (citing McCloud v. Testa, 97 F.3d 1536, 1546
(6th Cir. 1996)), cert, denied, 118 S. Ct. 298 (1997). Because
the court already knows what the job duties are, given the
extensive discovery with regard to the duties of each of the four
plaintiffs, as well as Sizemore's testimony about what he
envisioned the duties to be, we have before us the factual basis
necessary for the purely legal determination of whether or not
political affiliation is an appropriate consideration for
personnel decisions concerning the plaintiffs' jobs. Although the
parties give a different spin on the evidence, the underlying
facts -- what the duties of the jobs are as seen by the
plaintiffs and by Sizemore -- are not disputed. We therefore
conclude that we have jurisdiction to consider the "neat abstract
issue[] of law" presented by the appeal of the first four
plaintiffs. Johnson, 515 U.S. at 317.
B. Whether Plaintiffs Asserted a Constitutional Violation
Defendant Sizemore's appeal raises two legal questions, only
one of which we need to reach. In determining whether qualified
immunity exists, we first ask "whether the plaintiff has asserted
a violation of a constitutional right at all." Blair v. Meade, 76
F.3d 97, 100 (6th Cir. 1996) (quoting Siegert v. Gilley, 500 U.S.
226, 232 (1991)). Thus, in this case, we must determine whether
the facts as alleged by the plaintiffs state a First Amendment
claim. See id. "Only after the court makes this determination
does it consider whether this right was clearly established," the
second question in the qualified immunity analysis. Id.
The Supreme Court trilogy of Elrod v. Burns, 427 U.S. 347
(1976), Branti v. Finkel, 445 U.S. 507 (1980), and Rutan v.
Republican Party, 497 U.S. 62 (1990), establishes that public
employees continue to enjoy First Amendment freedoms of political
belief and association except where "party affiliation is an
appropriate requirement for the effective performance of the
public office involved." Branti, 445 U.S. at 518. In Rutan, the
Supreme Court explicitly extended this protection beyond the
context of firings, to include political patronage in areas such
as transfers, promotions, and recalls from layoffs. 497 U.S. at
64. Moreover, it is well-established in this circuit that members
of rival factions within the same political party are protected.
See McCloud, 97 F.3d at 1546.
As this court noted in Blair, the Branti exception was
"fleshed out in Faughender v. City of North Olmsted, 927 F.2d 909
(6th Cir. 1991)," which held that the court must examine two
things: (1) "the inherent duties of the position in question" and
(2) the "'duties that the new holder of that position will
perform,'" as envisioned by the newly elected official (the
defendant). Blair, 76 F.3d at 100 (citing Faughender, 927 F.2d at
913). "If this examination reveals that the position is
inherently political in nature, then political affiliation is an
appropriate requirement for the job." Id. Further guidance came
from Rice v. Ohio Dept. of Transportation, 14 F.3d 1133, 1142 n.9
(6th Cir. 1994), where the court held that broad
responsibilities, not well defined, make it more likely that a
job is a policymaking position.
In McCloud, the court attempted to organize the growing body
of Supreme Court and Sixth Circuit case law into a categorical
approach for determining whether a position falls within the
Branti exception, specifying the following categories:
Category One: positions specifically named in relevant
federal, state, county, or municipal law to which
discretionary authority with respect to the enforcement of
that law or the carrying out of some other policy of
political concern is granted;
Category Two: positions to which a significant portion of
the total discretionary authority available to category one
position-holders has been delegated; or positions not named
in law, possessing by virtue of the named jurisdiction's
pattern or practice the same quantum or type of
discretionary authority commonly held by category one
positions in other jurisdictions;
Category Three: confidential advisers who spent a
considerable portion of their time on the job advising
category one or category two position-holders on how to
exercise their statutory or delegated policymaking
authority, or other confidential employees who control the
lines of communication to category one positions, category
two positions, or confidential advisers;
Category Four: positions that are part of a group of
positions filled by balancing out political party
representation, or that are filled by balancing out
selections made by different governmental agents or bodies.
McCloud, 97 F.3d at 1557.
As the next step, therefore, we must review the claims of
each of the first four plaintiffs in light of the approaches
discussed in Faughender, Rice, Blair, and McCloud.
1. County Road Department Foreman/Garbage Coordinator Position
Under the Faughender analysis, we first examine the
"inherent duties" of the position in question. One way of
determining what those duties are is to consider the testimony of
a person who has held that position, although such testimony is
not decisive. See Smith v. Sushka, 117 F.3d 965, 970 (6th Cir.
1997) ("[A]n employee's prior duties can be used 'as a way to
gather evidence that the person's position was one affecting
policy.'" (quoting Faughender, 927 F.2d at 915)). Plaintiff
Vernon Muncy testified that as road foreman and garbage
coordinator, he was responsible for maintaining the roads in
Leslie County and supervising all 20-30 employees in the county
road and garbage department. The road foreman reports directly to
the county judge-executive, to whom he speaks "about every day."
Vernon Muncy testified that he decided which roads needed work
and what type of work they needed. Along those lines, he
maintained contact with the magistrates of the Fiscal Court, who
call on him when they want something done in their districts.
The second prong of the Faughender analysis requires the
court to consider the duties that the new holder of that position
will perform. Sizemore testified that he envisioned his newly
appointed road foreman, Clarence Napier, as his "liaison out to
the public on roads and road problems." Sizemore also testified
that the county road budget is roughly a third to a half of the
entire county budget. Napier testified that on a typical day, he
receives complaints from a number of citizens regarding the
condition of roads, which he follows up by inspecting the road
and reporting back to the judge. He handles what he considers
"small" problems and goes to the judge with big ones. He oversees
road projects and supervises the crew. According to magistrate
William Lewis, who served as magistrate for four terms, there is
a direct relationship between keeping roads maintained and
getting reelected.
Plaintiff Vernon Muncy's reliance on Judge Muncy's testimony
that the road foreman played no role in the design or enforcement
of policy and did not serve as an advisor ignores the fact that
what is relevant under Faughender is how the new office holder
envisions the position. Moreover, plaintiff does not challenge
defendant Sizemore's "vision" of the road foreman position, which
lends further support to the conclusion that the position as
defendant envisions it is inherently political. See Blair, 76
F.3d at 101 (finding support for conclusion that the job was
inherently political in the fact that plaintiffs did not
challenge the defendant's assertion of how he envisioned the
job). In addition, plaintiff Vernon Muncy is Judge Muncy's
brother, a fact which only makes it more likely that the position
is inherently political (although the relationship alone would be
insufficient for this conclusion).
In light of the inherent nature of this position, which
involves responsibility for carrying out the county judge-
executive's road maintenance policy and controlling the lines of
communication between the public and the judge executive, as well
as the nature of the job as envisioned by the new officeholder,
we conclude that the position is inherently political. The
evidence in the record shows that, although the road foreman does
not have significant discretionary authority as to policy
matters, he serves as the judge's "alter-ego" in the community
with respect to road conditions. See Blair, 76 F.3d at 101
(finding bookkeeper/assistant to chief financial officer to be a
position for which political affiliation is an appropriate
consideration because position was nothing more than "alter ego"
of executive position).
In Blair, the court noted that although many of the duties
of the position at issue were ministerial, the nature of the
position involved elements of confidentiality and trust, and the
position was "only one level removed from an executive position."
Id. The position of road foreman is also one level removed from
the executive and by its nature requires the holder of the
position to report important information to the executive and to
represent the executive in the community so far as county roads
are concerned. See Selch v. Letts, 5 F.3d 1040, 1044-47 (7th Cir.
1993) (holding that political affiliation was an appropriate
hiring consideration where plaintiff oversaw maintenance and
repair program for state highways, buildings and grounds, and
equipment because, inter alia, plaintiff was a critical and
highly visible representative of the state administration) (cited
with approval in Rice, 14 F.3d at 1040) (holding that political
affiliation was an appropriate consideration because deputy
directors and administrative assistants were responsible for
overseeing the expenditure of enormous amounts of tax money and
there is ample room for political disagreement on how resources
should be allocated)). In Selch, the Seventh Circuit concluded:
There is significant evidence in political life that the
failure to properly provide public services, such as snow
removal from highways, will adversely impact on the chief
executive of a state or a local government charged with
providing such services. In the case before us, the
successful implementation of policy in the area of highway
maintenance would likely have a substantial effect on the
public's perception of the Democratic administration. . . .
Id. at 1046-47 (citation omitted). In a case specifically
involving the position of a county road foreman, another court
found that political loyalty to the county judge was necessary
for the effective performance of the job at least in part because
"[i]n many ways, the foreman is the eyes and ears of the Judge so
far as the condition of county roads is concerned." Wagner v.
Hawkins, 634 F. Supp. 751, 754 (W.D. Ark. 1986) (emphasizing also
that the road foreman exerted influence on important policy
decisions). The county road foreman, as the eyes and ears of the
judge, clearly controls the lines of communication to and from
the judge, a political actor, and therefore, occupies an
inherently political position. See Faughender, 927 F.2d at 914
(holding that a position that controls the lines of communication
of a political actor must be political).
In any event, the road foreman position falls squarely into
the first of the four McCloud categories. Kentucky state law
specifically provides for a county road supervisor who "has the
general charge of all county roads and bridges within his county"
and must see that "county roads and bridges are improved and
maintained as provided by law." KRS § 179.070 (1),(2). Road
maintenance is a "policy of political concern," and the record
shows that the road foreman has some discretionary authority with
respect to carrying out this policy.
2. Assistant Road Foreman/Supervisor Position
As assistant road foreman, plaintiff Martin Muncy testified
that he worked under foreman Vernon Muncy, carrying out the tasks
ordered by the foreman. He was responsible for making sure that
work was being done properly and for checking to see which roads
needed work. He typically reported to the foreman, but would
report to the county judge-executive if the foreman was
unavailable. Clayton Baker, the assistant road foreman appointed
by Sizemore, testified that when the road foreman is off, the
assistant hands down instructions, and when the foreman is there,
the assistant drives a gravel truck. Sizemore urges the court to
conclude that because the assistant road foreman sometimes serves
the same functions as the road foreman, his position is also
necessarily inherently political.
Although the assistant road foreman is twice removed from
the executive, and his job is largely ministerial, defendant
Sizemore is correct that this position is inherently political
for essentially the same reasons the road foreman's position is.
Given the central importance of road maintenance in a rural
county and the fact that the assistant road foreman may be called
upon to serve as the executive's liaison with the public as far
as road conditions are concerned, the position can only be seen
as inherently political. As in Blair, where the court found that
both the finance officer and assistant finance officer fell
within the Branti exception because the assistant performed many
of the same tasks as the finance officer, in this case the
assistant road foreman falls within the Branti exception because
the nature of his job is to serve as the road foreman when the
road foreman is unavailable. See Blair, 76 F.3d at 101.
Furthermore, plaintiff Martin Muncy is the first cousin of former
judge Muncy, which lends support to the conclusion that the
position is inherently political.
The same analysis leads to the conclusion that the
assistant road foreman position falls within McCloud category
two. When the road foreman, who is in a category one position, is
absent, the assistant is delegated the authority available to the
category one position-holder. See McCloud, 97 F.3d at 1557.
3. Garage Supervisor/Purchasing Agent Position
Plaintiff Russell Hoard served as both garage supervisor and
purchasing agent. According to him, the garage supervisor in
Leslie County comes under the authority of the road department.
He takes complaints over the phone regarding road maintenance and
conditions and discusses these complaints with the county judge.
The county judge tells the supervisor which roads need to be
fixed, how he wants it done, what parts need to be bought, and
what equipment needs to be fixed. The garage supervisor is
responsible for supervising the employees at the road department
garage, which consists of telling them what to do and relaying
messages from the county judge and the road foreman. The garage
supervisor also measures fuel to see if more gas or diesel is
needed and keeps the garage clean. The "purchasing agent"
component of this position consists of shopping around for and
ordering the parts that the garage mechanic indicates are needed.
Plaintiff Hoard argues that the garage supervisor has no
discretion either in the design or enforcement of policy, nor
does he have the authority to answer the complaints he receives
by determining whether or not a road was to be fixed, and if so
when it is to be repaired. As garage supervisor, Hoard says, he
simply answered the phone, received complaints, and took notes.
According to Hoard, this position is "nothing more that a
supervisor with a glorified title . . . performing tasks over
which he . . . has no discretion, or no discretion of political
significance."
Sizemore concedes that the position is hard to "pigeon hole"
into a McCloud category, but he argues that the position is
inherently political because it controls the lines of
communication between the public and the county judge and between
the county judge and the garage employees. Judge Muncy's
testimony in this instance supports Sizemore's position. He
testified that the position of garage supervisor was important
from a political standpoint in that the position involves
interacting with citizens and keeping them from getting "any
madder than they already are." The defendant argues that these
facts show that "plaintiff was directly involved in the highly
political process of responding to complaints regarding road
conditions."
Even if responding to citizens' complaints over the phone
and supervising employees in the garage were not alone sufficient
for the conclusion that this job is inherently political, the
fact that the position involves a broad range of responsibilities
leads to the conclusion that it is political. See Rice, 14 F.3d
at 1142 n.9 (holding that broad responsibilities, not well
defined, make it more likely that a job is a policymaking
position). For example, in Blair, we noted that the positions at
issue were somewhat amorphous in nature and included a fairly
broad range of responsibilities. Citing Rice, we reasoned that
where there appears to be no strict division of labor necessary
for the orderly operation of an office, and the employees' duties
may therefore vary from one administration to the next, the court
should refrain from restricting a new administration's ability to
fire such employees because this would hamper the new
administration's ability to implement its policies. See Blair, 76
F.3d at 101. Defendant Sizemore has apparently decided that he
does not need anyone to serve as garage supervisor/purchasing
agent. This court should not hamper his ability to implement his
policy as he sees fit by holding him liable for failing to rehire
plaintiff Hoard.
4. Senior Citizens Director
Under the Faughender analysis, this position is clearly
political in nature and not protected by the First Amendment. As
envisioned by Sizemore, the director has discretion in the
appropriation of money under the senior citizens program budget.
Further, the director prepares and submits budgetary information
to both the county and state agencies which help to fund the
program, and Sizemore consults with and seeks advice from the
director concerning the operation of the centers. Sizemore
testified that the senior citizens director supervises the daily
operation of the two senior citizens homes, including scheduling,
ordering supplies and handling complaints, and also supervises
every employee of those facilities. Any policy Sizemore wishes to
implement regarding the operation of these centers must be
discussed with and channeled through the director, and the
director communicates with the public concerning the policies or
activities of the senior citizens program. Finally, Sizemore
testified that he was in almost daily contact with the director
concerning the operations of the senior citizens program,
discussing confidential matters such as personnel decisions and
prioritizing programs.
This senior citizens director has discretionary authority
with regard to the implementation of policy and appropriation of
funds within the program's budget, serves as the judge's
representative to the public on the issue of senior citizens, and
advises the judge on policy issues. Under either Faughender's
"inherently political" analysis, or McCloud's categorical
approach (this position would fall under either of the first two
categories), political affiliation is an appropriate
consideration for this position.
Based on the above analysis, the defendant should have been
granted summary judgment on the issue of qualified immunity with
respect to all four plaintiffs involved in this part of the
appeal: Vernon Muncy, Martin Muncy, Russell Hoard, and Betty Sue
Baker. Moreover, because the court has concluded that the jobs of
the plaintiffs are inherently political as a matter of law, it is
unnecessary for the court to proceed to the second legal question
-- whether it was clearly established, when defendant Sizemore
made his personnel decisions, that political affiliation was not
an appropriate requirement for the effective performance of the
job duties of these four plaintiffs' positions.
II. The Court's Jurisdiction With Respect to the Remaining 15
Plaintiffs
With respect to the remaining 15 plaintiffs, defendant
Sizemore contends, citing Pray v. City of Sandusky, 49 F.3d 1154,
1158 (6th Cir. 1995), that even though it was clearly established
that plaintiffs' positions fell outside the Branti exception, a
reasonable official in Sizemore's position could disagree that
his conduct in failing to re-nominate plaintiffs violated clearly
established law. According to Sizemore, Pray requires the court
to analyze the reasonableness of the belief that a defendant's
conduct was lawful in a fact-specific manner in light of clearly
established law and the information defendant possessed. Sizemore
insists that he is not requesting that the court resolve the
factual dispute underlying the constitutional claim, but instead
is requesting the court to decide, in light of the undisputed
information that he possessed, whether a reasonable public
official could have believed his actions were lawful. In support
of this argument, he cites Dolihite v. Maughon, 74 F.3d 1027,
1033-35 n.3 (11th Cir. 1996). Specifically, he argues that his
decision was objectively reasonable in light of the dire
financial circumstances of the county and the recommendation by
the Department of Local Government that he lay off all non-
essential personnel. According to Sizemore's analysis, because it
is undisputed that this was the information in front of him when
he made his personnel decisions, we should find as a matter of
law that his actions were objectively reasonable, because an
official may reasonably base his employment decisions on
financial considerations.
In making this argument, Sizemore would have us extend the
reach of Pray, a Fourth Amendment case in which the
constitutional claim does not require proof of defendant's
motive, to a case such as the present one, where the
constitutional claim itself is based on defendant's
unconstitutional motive. In a Fourth Amendment search and seizure
case, the qualified immunity question is whether the officer's
behavior was "reasonable," i.e., amounted to probable cause or
reasonable suspicion, given the officer's understanding of the
factual circumstances, even if his understanding was mistaken.
See Pray, 49 F.3d at 1158 (holding that officials are "entitled
to qualified immunity [when] their decision was reasonable even
if mistaken" (emphasis in original)). By contrast, in a motive-
based constitutional claim, specifically a political patronage
claim, the qualified immunity question is whether a reasonable
official could conclude that the plaintiff was not protected by
the First Amendment, i.e., that the plaintiffs' position was
inherently political under Branti. See Cope v. Heltsley, 128 F.3d
452, 459-60 (6th Cir. 1997) (applying Pray analysis to the
question of whether a reasonable official "could have believed"
that the positions at issue were such that "the law entitled her
to take political compatibility into account when deciding whom
to retain").
In Pray, although we said that the defendant was immune if
his decision was reasonable even if mistaken, we refused to grant
the defendant summary judgment because "there [were] factual
disputes involving an issue on which the question of immunity
turns, 'such that it cannot be determined before trial whether
the defendant did acts that violate[d] clearly established
rights.'" Pray, 49 F.3d at 1161 (quoting Poe v. Haydon, 853 F.2d
418, 426 (6th Cir. 1988)). The factual dispute identified in Pray
involved the circumstances at the time that the police officers
made their decision to use force when searching plaintiffs'
residence. Defendant Sizemore argues that because this court
knows what circumstances were before him when he decided to
discharge the plaintiffs, summary judgment is proper because his
decision is reasonable. What he fails to understand is that the
issue of whether it was reasonable under the facts to exercise
force under the Fourth Amendment is a very different type of
inquiry from whether it was reasonable to rely on financial
information in firing someone, because the latter question
necessarily turns on an issue of fact: whether defendant was
motivated by budgetary concerns or by the political affiliation
of the plaintiffs.
Defendant Sizemore concedes that the law was clearly
established that these 15 plaintiffs were protected under the
Branti analysis but attempts to extend Pray's "reasonableness"
analysis to the factual circumstances surrounding defendant's
motivation. We conclude that, under prior circuit precedent, the
result would amount to an improper extension of Pray and,
moreover, that it was implicitly rejected by the Supreme Court's
recent opinion in Crawford-El v. Britton 523 U.S. 574, 118 S. Ct.
1584, 140 L.Ed. 759 (1998).
Here, the district court held that a genuine issue of
material fact exists as to whether political affiliation
motivated the defendant. As we have previously suggested, Johnson
v Jones deprives us of jurisdiction to determine that factual
question. See Blair, 76 F.3d at 100 n. 2. Moreover, we noted in
Cope that where the district court holds that there is a genuine
issue of material fact as to defendant's motivation, and given
the procedural posture of the case as an appeal from the district
court's denial of summary judgment, as the reviewing court we
must assume for the purpose of considering the qualified immunity
question that the motivation issue would be resolved in favor of
the plaintiffs if submitted to a jury. See Cope, 128 F.3d at 456.
In that case, we ultimately found against the plaintiffs because
they failed to establish a violation of clearly established law.
But according to the analysis in Cope, had we found for the
plaintiffs on that issue, the question of motivation would have
been an issue for the jury, and we would have affirmed the
district court's denial of summary judgment. We could not have
proceeded to ask whether the defendant might reasonably have
acted on a proper basis in light of the information in front of
her when she made her personnel decision, as defendant in this
case proposes. In fact, although Cope did not address the
jurisdictional issue, it is clear after Johnson and Blair that we
do not have jurisdiction to consider the purely factual issue of
motivation.
It appears to us that defendant's argument is an attempt to
transform the factual issue of motivation into the legal question
of objective reasonableness. Such an approach would immunize all
defendants in cases involving motive-based constitutional torts,
so long as they could point to objective evidence showing that a
reasonable official could have acted on legitimate grounds. This
is exactly the approach suggested by Justice Scalia's dissent and
rejected by Justice Stevens's plurality opinion in Crawford-El,
118 S. Ct. at 1594 ("[T]he policy concerns underlying Harlow do
not support Justice Scalia's unprecedented proposal to immunize
all officials whose conduct is 'objectively valid,' regardless of
improper intent.") In Crawford-El, the Court rejected the
District of Columbia Circuit's requirement that a plaintiff offer
clear and convincing evidence of a defendant's improper motive in
response to defendant's motion for summary judgment on the issue
of qualified immunity, where unconstitutional motive is an
element of plaintiff's affirmative case.(4) Id. at 1594-95. In
rejecting this higher standard, the Court clarified that the
purely factual question of improper intent is separate from the
"essentially legal" qualified immunity question whether the
official's alleged conduct violated clearly established law. Id.
at 1592.
In his dissent in Crawford-El, Justice Rehnquist lamented
what he considered the Court's failure to explicitly address one
of the questions presented by the defendant, which is the very
same question presented in this appeal: "In a First Amendment
retaliation case against a government official, is the official
entitled to qualified immunity if she asserts a legitimate
justification for her allegedly retaliatory act and that
justification would have been a reasonable basis for the act,
even if evidence -- no matter how strong -- shows the official's
actual reason for the act was unconstitutional?" Id. at 1598-99.
We conclude that the Court did answer this question, if only
implicitly: First, it clearly rejected both Justice Rehnquist's
suggestion, which would require the plaintiff to establish that
the defendant's proffered reason for his conduct is pretextual,
and also Justice Scalia's suggestion that would grant immunity
once the trial court finds that the asserted grounds for the
official action were objectively valid. Second, in reviewing the
procedural safeguards that keep plaintiffs from making
unsubstantiated attacks on a defendant's motivation, the Court
noted that the plaintiff, in response to a defendant's summary
judgment motion, must "identify affirmative evidence from which a
jury could find that the plaintiff has carried his or her burden
of proving the pertinent motive." Id. at 1598 (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986)).
Given the Crawford-El court's rejection of the dissents'
alternative constructions, its policy against immunizing
officials based solely on their assertion of a valid reason for
their actions, and its reliance on the traditional analysis of a
summary judgment motion, the application of the Court's holding
to the present case, as it was presented to the district court,
is clear. As long as plaintiffs produced evidence that could
support a finding that Sizemore discharged them on the basis of
their political affiliation, the district court was obligated
under Crawford-El to deny Sizemore's motion for summary judgment.
Indeed, this is precisely the basis upon which the district court
denied Sizemore's motion, holding that "[w]hether the plaintiffs'
constitutionally protected activities prompted the defendants'
actions presents an issue of fact."
The district court's finding that there is a factual dispute
as to Sizemore's motivation, in turn, deprives this court of
appellate jurisdiction, as explicitly instructed by the Supreme
Court in Johnson. Although the Supreme Court clarified Johnson in
Behrens v. Pelletier, 516 U.S. 299 (1996), by stating that
"[d]enial of summary judgment often includes a determination that
there are controverted issues of material fact, see Fed. Rule
Civ. Proc. 56, and Johnson surely does not mean that every such
denial of summary judgment is non-appealable," 516 U.S. 312-13
(emphasis in original), that statement is not applicable to the
present case, despite the dissent's argument to the contrary. In
Behrens, the Supreme Court reaffirmed its previous holding in
Johnson that appellate courts do not have jurisdiction to review
"determinations of evidentiary sufficiency. . . if what is at
issue in the sufficiency determination is nothing more than
whether the evidence could support a finding that particular
conduct occurred," but instead only have jurisdiction over
"summary judgment determinations... [that] resolve a dispute
concerning an 'abstract issu[e] of law' relating to qualified
immunity... typically, the issue of whether the federal right
allegedly infringed was 'clearly established. . . ." 516 U.S. at
313 (internal citations omitted).
The Court held in Behrens, as it did in the Johnson opinion
itself, that the legal issue contained in a district court's
denial of summary judgment is not insulated from review simply
because the district court states in a conclusory fashion that
"material issues of fact remain." Behrens, 516 U.S. at 312
(internal brackets omitted); accord Johnson, 515 U.S. at 319. If
a district court does not adequately explain its reasons for
denying a motion for summary judgment on the basis of qualified
immunity and instead has stated conclusorily that there are
material disputes of fact remaining, "a court of appeals may have
to undertake a cumbersome review of the record to determine what
facts the district court, in the light most favorable to the non-
moving party, likely assumed." Behrens, 516 U.S. at 313 (quoting
Johnson, 515 U.S. at 319). The purpose of that review of the
factual record is to determine whether the district court's
holding that a given set of facts violates clearly established
law is correct, not to determine whether the district court
properly concluded that an issue of fact is "genuine," as the
latter determination is not reviewable. See Johnson, 515 U.S. at
319. The distinction between the two, of course, is the
difference between a legal question and a factual question. In
any event, the problem discussed in Behrens and Johnson -- of
district courts' summarily denying summary judgment motions and
failing to provide a sufficient explanation of the facts to which
it applied the law -- is not present in the case at bar. The
district court clearly stated the fact that it believed to be in
dispute - Sizemore's motivation, and the parties agree that if
Judge Sizemore's termination of the fifteen plaintiffs at issue
was motivated by their political affiliation, those facts violate
clearly established law.
In sum, there is no "abstract issue of law" to be reviewed
in this case. As we have explained, Sizemore's attempt to
transform a factual question about his motivation into a legal
question about the reasonableness of the discharges is without
merit. The question of motivation is factual in nature, and we
have no jurisdiction to consider the sufficiency of plaintiff's
evidence regarding Sizemore's motivation in discharging them. We
therefore conclude that we do not have jurisdiction over
defendant Sizemore's appeal of the denial of summary judgment as
to the claims of these 15 plaintiffs.(5)
III. Pendent Appellate Jurisdiction
The remaining defendants, Leslie County, Leslie County
Fiscal Court, Leslie County Judge-Executive Onzie Sizemore in his
official capacity, and the Leslie County magistrates in their
official capacities, contend that although they cannot
independently pursue an interlocutory appeal, we should assert
pendent appellate jurisdiction over their appeal because the
issues in their appeal and those raised by Sizemore in his
individual capacity are inextricably intertwined.
The Supreme Court recognized pendent appellate jurisdiction
in Swint v. Chambers County Comm'n, 514 U.S. 35 (1995), in which
it held that an issue which could not be raised independently on
interlocutory appeal could be considered along with the issue of
qualified immunity, which was properly before the court, if the
two appeals were "inextricably intertwined." Id. at 51. This
jurisdiction is discretionary, but it has been exercised by
several courts of appeals, including this one. See, e.g., Brennan
v. Township of Northville, 78 F.3d 1152, 1157-58 (6th Cir. 1996);
Dolihite, 74 F.3d at 1035 n.3; Kincade v. City of Blue Springs,
64 F.3d 389, 394-95 (8th Cir. 1995); Moore v. City of Wynnewood,
57 F.3d 924, 929-31 (10th Cir. 1995); Kaluczky v. City of White
Plains, 57 F.3d 202, 206-07 (2nd Cir. 1995). In Brennan, we held
that pendent appellate jurisdiction is proper when the appellate
court's finding on the qualified immunity issue "necessarily and
unavoidably" resolves the pendent claim. Brennan, 78 F.3d at 1158
(citing Moore, 57 F.3d at 929-30). For the purpose of considering
whether, in light of its resolution of the qualified immunity
issues, we can and should assert pendent appellate jurisdiction
in this case, it is necessary to place the plaintiffs' claims
into two categories: (1) the claims of the four plaintiffs who
fall within the Branti exception and therefore fail to assert a
constitutional violation, and (2) the claims of the 15 plaintiffs
over which this court has no jurisdiction because there remains
an issue of fact as to defendant Sizemore's motivation.
The defendants' appeal as to the Branti plaintiffs presents
"the quintessential case for application of pendent
jurisdiction," calling for an"exercise [of] our discretion to do
so in the interest of judicial economy." Brennan, 78 F.3d at 1158
(asserting jurisdiction over plaintiff's underlying
constitutional claims when considering appeal of police officers
sued in their individual capacity, and noting that the court
could have asserted jurisdiction over the an appeal by the city
had the city pursued one). The defendants' appeal of the four
plaintiffs' claims in this case is "inextricably intertwined"
with that of Sizemore because the resolution of Sizemore's appeal
necessarily disposes of this pendent action against the city and
its officials. A city or county and its leaders may not be held
liable when there has been no constitutional violation by one of
the city or county's employees. See City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986); Hinton v. City of Elywood, 997
F.2d 774, 782 (10th Cir. 1993). Hence, having determined that
Sizemore is entitled to qualified immunity with respect to the
claims of plaintiffs Vernon Muncy, Martin Muncy, Russell Hoard,
and Betty Sue Baker because these plaintiffs failed to assert a
constitutional violation, we necessarily decide the claims of
these plaintiffs against the county and its officials in their
official capacity. We therefore hold that the claims of these
four plaintiffs against the "pendent" defendants must be
dismissed, because the plaintiffs' failure to establish a
constitutional violation disposes of any liability on the part of
these defendants.
However, having concluded that we do not have jurisdiction
to consider Sizemore's appeal of the district court's denial of
his motion for summary judgment as to the final 15 plaintiffs,
because there are genuine issues of material fact as to his
motivation for discharging them, we cannot assert pendent
appellate jurisdiction over the appeal of the remaining
defendants concerning the claims of these 15 plaintiffs.
CONCLUSION
For the reasons set out above, we REVERSE the district
court's denial of summary judgment both as to Sizemore in his
individual capacity on the basis of qualified immunity and also
as to the pendent defendants on the merits, with respect to the
claims of Vernon Muncy, Martin Muncy, Russell Hoard, and Betty
Sue Baker. With respect to the claims of the remaining 15
plaintiffs, we conclude that we are without jurisdiction over
both the district court's denial of summary judgment to Sizemore
in his individual capacity and the pendent defendants' appeal on
the merits, and we therefore DISMISS the second appeal and REMAND
the case for further proceedings.
_____________________________________________
CONCURRING IN PART, DISSENTING IN PART
_____________________________________________
ALICE M. BATCHELDER, Circuit Judge. I concur in all of the
reasoning and most of the result of this opinion. I must
respectfully dissent from the conclusion reached in Part II,
however, because in my view, the reasoning of the majority
opinion and the record in this case require reversal of the
district court's denial of summary judgment to defendant Sizemore
on the claims of the 15 plaintiffs whose jobs do not fall within
the Branti exception.
The majority opinion quite rightly says, "As long as
plaintiffs produce evidence that could support a finding that
Sizemore discharged them on the basis of their political
affiliation, the district court was obligated under Crawford-El
to deny Sizemore's motion for summary judgment." This is, of
course, precisely the point. If the plaintiffs had presented any
such evidence, they would have been entitled to go to trial. But
they did not. The plaintiffs claim that their discharges and
failures to obtain rehire were politically motivated, but the
verified complaint contains no facts to support plaintiffs'
allegations, and they have presented not one shred of evidence of
political motivation in their opposition to the motion for
summary judgment. The complaint merely lists the positions in
which each of the plaintiffs had been employed, recounts the fact
of the election, states that defendant Onzie Sizemore notified
the plaintiffs that their employment was being terminated as of
the end of Judge Muncy's term, states that "Onzie Sizemore[]
approved a list of new employees, which included replacement
employees for the plaintiff's [sic] positions," and states that
"[t]he plaintiff [sic] were all discharged (or not rehired) in
retaliation for their failure or refusal to support the
defendant, Onzie Sizemore . . . ."(1) Not a single deposition in
the record contains a factual allegation that, if proved, would
demonstrate that defendant Sizemore terminated and failed to
rehire these 15 plaintiffs because of their support for Judge
Muncy. Not a single deposition contains a factual allegation that
a Sizemore supporter had been hired to fill the position of any
of these 15 plaintiffs. Indeed, the record contains no evidence
that these plaintiffs were replaced at all. The record on summary
judgment contains only the fact that these plaintiffs supported
Judge Muncy, the fact that they were not rehired after
termination, and a few unsupported opinions(2) that there was a
causal connection between those two facts.
It is undisputed that all of these plaintiffs, as well as
all other county employees, received termination notices advising
them that it was defendant Sizemore's understanding that their
employment terminated at the conclusion of Judge Muncy's term.(3)
While Judge Muncy, whom defendant Sizemore defeated, testified
that it was the custom to terminate such employees at the
conclusion of the office term of the county judge who appointed
them, and that he, Muncy, had followed that custom and had done
so for political reasons, there was no evidence presented that
Sizemore had issued the termination notices for political
reasons. Not one of those 15 plaintiffs presented any direct
evidence that Sizemore either terminated his employment or
refused to rehire him for political reasons. The only
circumstantial evidence of such a motivation was that these
employees had supported Judge Muncy for re-election. They--like
all the other county employees--were terminated at the end of
Muncy's term, and they were not rehired.
Defendant Sizemore, however, presented significant
uncontroverted evidence that: at the end of Judge Muncy's term,
the county had some 50 to 60 employees, all of whom Sizemore
terminated; Sizemore hired approximately 39 employees at the
beginning of his term; of those 39, only three were new
employees,(4) all the others having been employed by the Muncy
administration; and at least some of those employees Sizemore
hired back had been supporters of Judge Muncy in the immediately
preceding election.(5) Further, the record evidence is undisputed
that the list of county employees at the end of 1995--after this
lawsuit was filed--was essentially identical to the list of
employees hired at the beginning of defendant Sizemore's term;
thus, it is clear that Sizemore did not simply wait awhile and
then hire new people to replace these plaintiffs.
Where the plaintiffs have presented actual evidence
supporting their factual assertions, and where that evidence
creates a genuine issue of fact material to the issues, we must,
for purposes of the defendant's motion for summary judgment, take
the plaintiffs' version of the facts to be true. But not even
Johnson v. Jones, 515 U.S. 304 (1995), requires us simply to
accept the district court's bald statement that "whether the
plaintiffs' constitutionally protected activities prompted the
defendants' actions presents an issue of fact," when the district
court did not identify any charged conduct that it deemed
sufficiently supported in the record to create such an issue of
fact. See Behrens v. Pelletier, 516 U.S. 299, 313 (1996). As this
court reiterated in Turner v. Scott, 119 F.3d 425, 430 (6th Cir.
1997), "summary judgment rulings must be based on admissible
evidence." In Turner, we concluded that the district court's
belief that there was a genuine issue of material fact did not
prevent appellate review of the denial of summary judgment
because the evidence, viewed in the light most favorable to the
plaintiff, did not establish even a prima facie case against the
defendant officer, and the defendant thus was entitled to
judgment as a matter of law. See id. at 428.
The issue before us, as the majority opinion points out, is
neither whether the county was in fact in dire financial straits
(although there is considerable evidence that it was and little
evidence that it was not), nor whether a reasonable official in
defendant Sizemore's position could have believed that he could
refuse to rehire those 15 ex-employees without violating their
First Amendment rights. The issue here is whether the plaintiffs
presented any evidence that Sizemore refused to rehire them
because they had supported Judge Muncy. Citing Behrens, the
majority opinion says that when the district court denies
qualified immunity at the summary judgment stage with a
conclusory statement that genuine issues of material fact remain,
[t]he purpose of [appellate] review of the factual record is
to determine whether the district court's holding that a
given set of facts violates clearly established law is
correct, not to determine whether the district court
properly concluded that an issue of fact is "genuine," as
the latter determination is not reviewable. The distinction
between the two, of course, is the difference between a
legal question and a factual question. In any event, the
problem discussed in Behrens and Johnson -- of district
courts' [sic] summarily denying summary judgment motions and
failing to provide a sufficient explanation of the facts to
which it applied the law -- is not present in the case at
bar. The district court clearly stated the fact that it
believed to be in dispute -- Sizemore's motivation, and the
parties agree that if Judge Sizemore's termination of the
fifteen plaintiffs at issue was motivated by their political
affiliation, those facts violate clearly established law.
(citation omitted). Hence, the majority concludes, we have no
jurisdiction over this appeal.
But the district court's simply stating the fact that it
believed to be in issue cannot put that fact in issue; there must
be some evidence to support the plaintiffs' factual allegations.
And a determination that the record contains no such evidence is
not a determination that the issue of fact is or is not genuine;
it is a determination that there is no issue of fact at all. If
the review of the factual record demonstrates that there is no
evidence to support the plaintiffs' claim, then it is immaterial
whether that set of facts, if it existed, would violate clearly
established law. Here, the plaintiffs have presented no facts
tending to demonstrate Sizemore's motivation, which is the fact
the district court believed was in dispute.
As the majority points out, Crawford-El requires that where
the defendant moves for summary judgment in a First Amendment
case such as this, it is the plaintiff's burden to "identify
affirmative evidence from which a jury could find that the
plaintiff has carried his or her burden of proving the pertinent
motive." In my view, the record here is devoid of any evidence at
all relative to defendant Sizemore's motivations with regard
these 15 plaintiffs. I would hold that because the verified
complaint contains no facts and the plaintiffs have provided no
evidence tending to demonstrate the violation of a constitutional
right, the question before the court is a purely legal one
subject to appellate review, and that the district court's denial
of summary judgment to Sizemore on these claims should be
reversed.
Footnotes
1 The district court exercised jurisdiction based on 28
U.S.C. § 1331, 28 U.S.C. § 1343, and 42 U.S.C. § 1983.
2 The amended complaint involved 22 plaintiffs: Vernon
Muncy, road foreman; Martin Muncy, assistant road foreman;
Russell A. Hoard, purchasing agent and garage supervisor; Betty
Sue Baker, director of senior citizens program; Thomas Bentley,
general laborer; Nancy Wooten, dispatcher; Joan Gay, secretary
for senior citizens program; Marlene Feltner, director of
emergency services; Carl Wooten, mechanic; Clyde Conway Vance,
general laborer; Norman Couch, general laborer; Elias Collett,
truck driver; Dean Adams, truck driver; Stevie Caldwell, shot
foreman and truck driver; Leslie Huff, carpenter and general
laborer; Lowell Thomas, Jr., mechanic; Christy Couch Sexton,
secretary for judge executive; Ronnie Sizemore, welder and
general laborer; Ronnie Huff, truck driver, carpenter and general
laborer; Levi Muncy, truck driver; George Sizemore, heavy
equipment operator; Steve Collins, welder. This appeal involves
only 19 of the original 22 plaintiffs because the district court
granted defendant Onzie Sizemore summary judgment on the basis of
qualified immunity with respect to two of the original
plaintiffs, Christy Couch Sexton and Marlene Feltner, and the
district court granted plaintiff Lowell Thomas's motion to
voluntarily dismiss his complaint.
3 Because "Muncy" is also a name shared by several of the
plaintiffs, we will refer to the former county judge-executive as
Judge Muncy and to the Muncy plaintiffs by their first and last
names.
4 The Supreme Court noted that the Court of Appeals'
evidentiary requirement and consequently the high court's opinion
applied to "a wide array of different federal claims for which an
official's motive is a necessary element," including "termination
of employment based on political affiliation in violation of the
First Amendment." Crawford-El, 118 S. Ct. at 1590.
5 Even if the court were to have jurisdiction over that
issue, as the dissent argues, Judge Sizemore has explicitly
stated that he is not asking the court to decide it. ("For
purposes of this appeal, Judge Sizemore is not requesting the
Court to review the 'evidentiary' sufficiency' of whether a
genuine issue of material fact exists." Instead, "[i]t is Judge
Sizemore's contention on appeal that even though it was clearly
established that Plaintiffs' positions fell outside the Branti
exception, a reasonable official in Judge Sizemore's position
could disagree that his conduct in failing to renominate
Plaintiffs violated clearly established law.")
Furthermore, assuming again that this court had jurisdiction
to review the district court's decision regarding the sufficiency
of plaintiff's evidence regarding Sizemore's motivation, the
plaintiffs have produced sufficient evidence of political
motivation to create a genuine issue of disputed fact. The
plaintiffs offer the deposition testimony of Billy Sizemore, one
of the defendants in this case, whose response to the question,
"Why was it necessary for the County to terminate all the County
workers as of December 31, 1993?" was, "You sort of put your own
people in when you go in office, I guess." In response to the
following question, "Do you know of any legitimate reason why it
would be necessary to terminate all of the employment within
Leslie County at the end of a term or at the end of an
Administration?" Sizemore said "No." The plaintiffs also offer
evidence that the county's financial condition was not as dire as
the defendants represent it to have been, along with evidence
that Judge Sizemore's staff may have misled the financial analyst
evaluating the county's financial condition by providing
duplicative copies of bills the county owed, which the financial
analyst double counted, and by presenting bills to the analyst as
though they had to be paid, when some of them were not necessary
to pay (such as a bill for dues for an organization that the
county was not necessarily obligated to pay). The plaintiffs also
note that after Judge Sizemore took office, he incurred one
million dollars in debt for the county for a black-topping
project, which one defendant, Billy Sizemore, said he could not
understand the county assuming if it faced the severe financial
problems Judge Sizemore alleged. The evidence of the validity of
the county's alleged financial crisis is offered to show that
Judge Sizemore's stated motivation is pretextual.
Proofing a nebulous fact such as motivation is difficult,
and although the plaintiff's evidence is not overwhelming, it
presents reasonable doubt about Judge Sizemore's motivation. In
any event, despite the dissent's argument to the contrary,
plaintiffs have produced more than a "shred" of evidence, and
certainly have produced as much, if not more, evidence than that
presented by Jones, the civil rights plaintiff in the Johnson
case, that the three officers moving for summary judgment had
knowingly stood by while another officer beat him.
1 It is worth noting, however, that at least one of the
signatories to the verified complaint, Lowell Thomas, Jr.,
admitted at his deposition that he in fact had not been
terminated by Sizemore, but had voluntarily quit his county job
shortly after the primary election. He was permitted by the
district court to dismiss his complaint voluntarily.
2 Those unsupported opinions include the opinions of
defendant Billy Sizemore noted by the majority as evidence of
defendant Onzie Sizemore's motives.
3 There is Kentucky law supporting this understanding. See
Christian v. Belcher, 888 F.2d 410, 414-15 (6th Cir. 1989)
(noting that the court had been unable to find any authority
contrary to the district court's explicit holding that under
Kentucky law, the terms of all county employees expire
automatically at the end of each executive administration); 82
Ky. Op. Att'y Gen. 63 at 2-76 (1982); 78 Ky. Op. Att'y Gen. 432
at 2-178 (1978).
4 Defendant Sizemore testified that only three of these
employees were new. There is no testimony in the record to the
contrary. It is clear that two of the new employees were Clarence
Napier and Clayton Baker, who were appointed to the positions of
County Road Foreman and Assistant Road Foreman, positions we have
held to be inherently political.
5 For example, Dolly Kilburn, Hattie Asher and Jackie
Roberts provided affidavits indicating that they had openly
supported Judge Muncy, that they had done so in the presence of
defendant Sizemore or under circumstances such that Sizemore
would have been aware of their activities, and that they had been
rehired by defendant Sizemore after he took office.
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