Ron Nord v. Walsh County , 757 F.3d 734 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-3249
___________________________
Ron Nord
lllllllllllllllllllll Plaintiff - Appellee
v.
Walsh County, a North Dakota political subdivision; Lauren W. Wild, individually
and in his capacity as Sheriff of Walsh County
lllllllllllllllllllll Defendants - Appellants
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Appeal from United States District Court
for the District of North Dakota - Fargo
____________
Submitted: October 23, 2013
Filed: June 26, 2014
____________
Before GRUENDER, BEAM, and SHEPHERD, Circuit Judges.
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BEAM, Circuit Judge.
Ron Nord brought this 42 U.S.C. § 1983 action against Walsh County (the
"County") and Lauren Wild, both in his individual capacity and in his capacity as
sheriff of Walsh County, alleging violations of his First Amendment and Fourteenth
Amendment rights and various state law claims. Wild moved for summary judgment
based upon qualified immunity as to Nord's First Amendment claim, which the
district court denied.1 Wild, supported by the County, brings this interlocutory
appeal.2 We reverse.
I. BACKGROUND
From 1991 until his termination on November 3, 2010, Nord was employed as
a deputy sheriff in Walsh County, North Dakota. He served at the pleasure of Sheriff
Lauren Wild, who had been the duly elected sheriff since 1989. In early 2010, Nord
entered the sheriff election, running against Wild. Both Nord and Wild earned
1
Wild apparently did not raise qualified immunity as a defense to the alleged
Fourteenth Amendment violation. Accordingly, that issue is not before us in this
appeal.
2
We have jurisdiction under the collateral order doctrine to hear this
interlocutory appeal of the district court's denial of Wild's qualified immunity
defense. Robbins v. Becker, 715 F.3d 691, 693 (8th Cir. 2013); see also Owen v. City
of Independence, Mo., 445 U.S. 622, 638-39 (1980) (recognizing that the qualified
immunity defense is available to individuals, not to local government units). We
"'may not consider summary judgment on the merits of the case at this interlocutory
stage.'" Lockridge v. Bd. of Trs., of the Univ. of Ark., 315 F.3d 1005, 1012 (8th Cir.
2003) (en banc) (quoting Mettler v. Whitledge, 165 F.3d 1197, 1202 (8th Cir. 1999)).
Accordingly, our jurisdiction in this appeal does not extend to the denial of summary
judgment on the other federal and state law claims in this appeal. The County and
Wild also appeal the district court's findings related to the municipality liability claim.
"We will exercise pendent [appellate] jurisdiction over such an appeal only in the
'exceptional circumstance' in which it is 'inextricably intertwined' with the qualified
immunity appeal, which occurs when the resolution of the qualified immunity claim
'necessarily resolves the pendent claims as well.'" S.L. ex. rel. Lenderman v. St. Louis
Metro. Police Dep't Bd. of Police Comm'rs, 725 F.3d 843, 854 (8th Cir. 2013)
(quoting Lockridge, 315 F.3d at 1012). We decline to exercise our pendent appellate
jurisdiction here. Therefore, the only claim properly before us in this appeal is Wild's
qualified immunity defense to Nord's First Amendment claim.
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enough votes in the primary election to appear on the general election ballot.3 During
Nord's campaign, he maintained his position as deputy sheriff without any change in
pay or benefits and, according to Wild's deposition testimony, performed his duties
as deputy sheriff. Nord does not assert that Wild in any way interfered with his
campaign efforts. On November 2, 2010, Wild won the election.
The day following the election Wild called Nord into the office at 8:00 a.m.,
rather than his scheduled 1:00 p.m. shift, and terminated Nord's employment. Prior
to terminating Nord, Wild consulted Tanya Wieler, the County's human resources
consultant, and Barbara Whelan, the Walsh County attorney, regarding Nord's tenure.
Both Wieler and Whelan told Wild he was within his authority as sheriff to terminate
Nord.
Nord's termination caused some unrest in the County and resulted in a recall
election, which Wild also won. During the recall election, Wild made statements that
Nord was fired in accordance with an "unwritten rule" that deputy sheriffs who run
against the sheriff will be fired and for certain statements Nord made during the
campaign. After his termination, Nord searched for another job, and in May 2011,
was hired as a deputy in the Grand Forks County Sheriff's Department.
On December 17, 2010, Nord filed this § 1983 lawsuit against Walsh County
and Wild. Nord alleged that he was fired in retaliation for the statements he made
along the campaign trail, statements, he claims, that were protected by the First
Amendment. Wild moved for summary judgment asserting a qualified immunity
defense, which the district court denied. Wild appeals the denial of qualified
immunity.
3
In North Dakota, sheriff elections are conducted using a non-partisan ballot
which excludes political party designations. N.D. Cent. Code § 16.1-11-08. The two
candidates receiving the most votes in the primary advance to the general election.
Id. § 16.1-11-37.
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II. DISCUSSION
We review a denial of summary judgment on the grounds of qualified immunity
de novo. Stoner v. Watlingten, 735 F.3d 799, 802 (8th Cir. 2013). "Summary
judgment is appropriate when the evidence viewed in the light most favorable to the
nonmoving party presents no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law." Id. (quotation omitted). We have limited
jurisdiction to hear an interlocutory appeal of a district court's denial of qualified
immunity. Robbins v. Becker, 715 F.3d 691, 693 (8th Cir. 2013). We may review
a district court's order denying such immunity to the extent that it turns on an issue
of law, but we have no jurisdiction if the pretrial record sets forth genuine issues of
fact necessary for resolution of the interlocutory appeal. Id. No such factual issues
present themselves in this case.
"In a § 1983 action, qualified immunity shields a government official from
liability unless his conduct violates clearly established statutory or constitutional
rights of which a reasonable person would have known." Coker v. Ark. State Police,
734 F.3d 838, 841-42 (8th Cir. 2013) (internal quotations omitted). Qualified
immunity analysis requires a two-step inquiry: "'(1) whether the facts shown by the
plaintiff make out a violation of a constitutional or statutory right, and (2) whether
that right was clearly established at the time of the defendant's alleged misconduct.'"
Winslow v. Smith, 696 F.3d 716, 731 (8th Cir. 2012) (quoting Brown v. City of
Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009)). Unless both of these questions
are answered affirmatively, an appellant is entitled to qualified immunity. Id. And,
courts are "permitted to exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first." Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
We begin with the first step of the qualified immunity inquiry. In this limited
context, Wild concedes that Nord was terminated in violation of his First Amendment
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rights under the first prong of the investigation. Assuming, without holding, that this
is true, we conclude that step one of the qualified immunity analysis has been
sufficiently established for purposes of further inquiry.
Despite this concession, Wild contends that given the circumstances of this
dispute, qualified immunity nonetheless protects him because his act of terminating
Nord did not violate a "clearly established statutory or constitutional right[] of which
a reasonable person would have known." Hope v. Pelzer, 536 U.S. 730, 739 (2002)
(quotation omitted).
For a constitutional right to be clearly established, its contours "must be
sufficiently clear that a reasonable official would understand that what
he is doing violates that right. This is not to say that an official action
is protected by qualified immunity unless the very action in question has
previously been held unlawful; but it is to say that in the light of
pre-existing law the unlawfulness must be apparent."
Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (internal citation
omitted).
As the Supreme Court has recently reiterated, "'[q]ualified immunity gives
government officials breathing room to make reasonable but mistaken judgments,'
and 'protects all but the plainly incompetent or those who knowingly violate the law.'"
Stanton v. Sims, 134 S. Ct. 3, 5 (2013) (per curiam) (quoting Ashcroft v. al-Kidd, 131
S. Ct. 2074, 2085 (2011) (internal quotation omitted)). In addition, "existing
precedent must have placed the statutory or constitutional question beyond debate."
Id. (quotation omitted).
To evaluate whether Nord makes out a claim that his constitutional rights were
clearly established and violated by Wild's act of termination, we must determine
whether or not his particular speech was protected by the First Amendment. Sexton
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v. Martin, 210 F.3d 905, 910 (8th Cir. 2000). This inquiry is one of law, not fact.
Hinshaw v. Smith, 436 F.3d 997, 1004 (8th Cir. 2006).4
This protected or not conundrum and well-established Supreme Court
precedent brings into play the use of the so-called Pickering/Connick balancing test.
See Pickering v. Bd. of Educ., 391 U.S. 563 (1968); Connick v. Myers, 461 U.S. 138
(1983); see also Shockency v. Ramsey Cnty., 493 F.3d 941, 949 (8th Cir. 2007). As
an initial matter, if the record supports the application of the test, it provides a
balancing of Nord's First Amendment rights against Wild's state government
employer prerogatives in an exercise that determines whether the contours of Nord's
asserted rights were clearly enough established to make Wild's conduct actionable.
See Shockency, 493 F.3d at 948.
4
As the dissent recognizes, this inquiry is sometimes fully addressed in the first
step of qualified immunity, see post at 16-17. More often, however, such initial
inquiry also informs the analysis of the second step of the qualified immunity test.
See Pearson, 555 U.S. at 236 ("[I]t often may be difficult to decide whether a right is
clearly established [and constitutionally protected] without deciding precisely what
the [particular] constitutional right happens to be." (first alteration in original)
(quotation omitted)). Given the nature of the concession in this case, it is necessary
to apply the Pickering/Connick balancing test at this point in order to determine
whether the asserted constitutional right was clearly enough established for the
Stanton-Court-described reasonable official to understand whether or not there is a
violation of the right. See Stanton, 134 S. Ct. at 5. In this regard, it should also be
noted that all cases cited by the dissent on page 18 were decided prior to the Supreme
Court's decision in Pearson, in which the Court held that "the district courts and the
courts of appeals should be permitted to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis should be addressed first
in light of the circumstances in the particular case at hand." 555 U.S. at 236. In those
opinions the court did not have the discretion to begin its analysis at the second step
of the qualified immunity inquiry.
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If, upon application of the test, Nord's rights were not clearly established, Wild
is, of course, entitled to a qualified immunity defense against Nord's claims. Indeed,
if the evidence in the record is sufficient to proceed with the Pickering/Connick
balancing exercise, this circuit has held that "the asserted First Amendment right will
rarely be considered clearly established." Hall v. Mo. Highway & Transp. Comm'n,
235 F.3d 1065, 1068 (8th Cir. 2000).
To determine whether and how to apply Pickering/Connick, we turn to the
record to make a substantive analysis of Nord's speech and Wild's rights as a public
employer. See Pickering, 391 U.S. at 568-70. This analysis requires a two-step
inquiry. "First, we determine whether the employee's speech can be 'fairly
characterized as constituting speech on a matter of public concern.'" Belk v. City of
Eldon, 228 F.3d 872, 878 (8th Cir. 2000) (quoting Connick, 461 U.S. at 146).
"Second, if the speech addresses a matter of public concern, we balance the 'interests
of the [employee], as a citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the efficiency of the public services
it performs through its employees.'" Id. (alteration in original) (quoting Pickering, 391
U.S. at 568).
[A]pplying the Pickering test we weigh the employee's right to engage
in the particular speech . . . with such considerations as "whether the
statement impairs discipline by superiors or harmony among co-workers,
has a detrimental impact on close working relationships for which
personal loyalty and confidence are necessary, or impedes the
performance of the speaker's duties or interferes with the regular
operation of the enterprise."
Hinshaw, 436 F.3d at 1005 (quoting Rankin v. McPherson, 483 U.S. 378, 388
(1987)).
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Thus, under Pickering/Connick, this court's task involves an analysis of (1) the
general authority and responsibilities of the employing government entity, (2) the
nature and character of the specific employer-employee relationship, (3) the speech
involved and (4) evidence tending to establish the speech's impact on the efficient
operation of the government entity. See generally Connick, 461 U.S. at 147-153.
North Dakota counties are political subdivisions of the State. N.D. Const. Art.
VII, § 2. As such, the county sheriff manages and enforces a substantive portion of
the sovereign's policing powers. Indeed, the sheriff's office is, in significant part, the
image of North Dakota law enforcement as seen by many citizens, especially in the
more rural counties.
The Walsh County Sheriff's Department is relatively small, employing
approximately ten officers and six jailers. We particularly focus on the officers,
taking judicial notice that the policing mission is a seven-day per week, 24-hours per
day operation. This presumably means that there will be times when a single deputy
will present the face of the sheriff in the county, at least in an assigned district.
In Walsh County there is an official Sheriff's Department Policy Manual which
contains the general description of a deputy sheriff's job duties: the deputy sheriff is
"[u]nder the general supervision of the Sheriff to be responsible in an assigned district
for general police work, prevention and detection of crime, the protection of life and
property, and [to] perform duties as assigned."
The Supreme Court of North Dakota has recognized that "'the official acts of
a deputy sheriff are the acts of the sheriff.'" Turnquist v. Kjelbak, 77 N.W.2d 854, 857
(N.D. 1956) (quoting Wilson v. Russell, 31 N.W. 645 (Dakota 1887) and
Summerville v. Sorrenson, 136 N.W. 938 (N.D. 1912)). The deputy sheriff is the
"deputy of the sheriff, not of the office of sheriff as distinct from the person holding
the office, to act for the person who is sheriff, and by whom he is appointed."
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Wilson, 31 N.W. at 650. The sheriff "creates" the deputy sheriff, and "he can at any
time, while in office, at his own will destroy his official existence as his deputy." Id.
The North Dakota Supreme Court has further recognized that the "act of the deputy
is the act of the sheriff; he has no original power, but acts as the representative or
agent of the sheriff, who is the principal." Turnquist, 77 N.W. at 857 (quotation
omitted). Thus, Nord was employed as an agent of Wild.
Furthermore, North Dakota law grants the sheriff the ability to appoint its
deputies. N.D. Cent. Code § 11-10-11. From this power, North Dakota Attorney
General opinions indicate, the sheriff has the ability to terminate those same deputies.
N.D. Op. Att'y Gen. 82-38 (1982) ("The sheriff has the authority to hire and fire
deputies, within the number and salary set by the county commissioners. There is no
statutory procedure under state law which the sheriff must follow in firing a person
appointed by him."); N.D. Op. Att'y Gen. L-32 (1997) ("It has long been the position
of this office that implicit in a county officer's power to appoint or hire an employee
under N.D.C.C. § 11-10-11 is the power to fire that employee."). The Attorney
General also opined, that absent a "just cause" requirement for termination or another
source of constraint on the employer's discretion to terminate its employees, the
general rule of employment at will is presumed. N.D. Op. Att'y Gen. L-333 (1993).
In sum, based upon the above-precedent and a fair reading of North Dakota Attorney
General opinions on the subject, a North Dakota sheriff, in the light of pre-existing
law, could, and perhaps should, believe that his deputies are "at will employees."
Of greater importance, perhaps, is the latitude the courts accord a managing
law enforcement officer in executing his official duties, including the hiring and
firing of employees–especially subordinate officers. This circuit has recognized the
deference given to law enforcement agencies. Buzek v. Cnty. of Saunders, 972 F.2d
992, 995 (8th Cir. 1992) ("[L]aw enforcement agencies, more than other public
employers, have special organizational needs that permit greater restrictions on
employee speech."); Crain v. Bd. of Police Comm'rs, 920 F.2d 1402, 1411 (8th Cir.
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1990) ("More so than the typical government employer, the [Missouri Highway]
Patrol has a significant government interest in regulating the speech activities of its
officers in order to promote efficiency, foster loyalty and obedience to superior
officers, maintain morale, and instill public confidence in the law enforcement
institution." (alteration in original) (quotation omitted)). Thus, in accord with the
holding of Connick, ordinary dismissals from government service which violate no
fixed tenure or applicable statute or regulation are not subject to judicial review.
Connick, 461 U.S. at 146. "[T]he Government, as an employer, must have wide
discretion and control over the management of its personnel and internal affairs. This
includes the prerogative to remove employees whose conduct hinders efficient
operation and to do so with dispatch." Id. at 151 (quotation omitted).
When close working relationships are essential to fulfilling public
responsibilities, a wide degree of deference to the employer's judgment
is appropriate. Furthermore, we do not see the necessity for an employer
to allow events to unfold to the extent that the disruption of the office
and the destruction of working relationships is manifest before taking
action.
Id. at 151-52 (emphasis added).
With this in mind, we turn to Nord's speech leading to his termination. The
record contains Wild's deposition taken by Nord and Nord's deposition taken by Wild.
During the course of the interrogatories propounded by Nord's counsel, Wild testified
that he had been told that Nord had indicated to voters that Wild's health was bad and
that he should not be running for office because his health was so bad. And, Wild
stated that he heard "[o]ne report . . . that my wife didn't even want me to run." Wild
also stated that another report indicated that he had said "[he] was going to resign as
sheriff in two years and run for [Joe Miller's (a state senator at the time)] position as
senator." Wild testified that at least some of these statements were outright lies.
Nord does not deny making some version of at least some such statements. Indeed,
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he testified with regard to Joe Miller, downplaying his statement a bit, "I said: Joe,
do you want to hear a good one? He said: what's that? I said: I hear Lauren [Wild]
wants to run against you for the next election. Joe just smiled and said: bring it on."
Nord was asked where he heard that information and Nord said, "I don't recall
. . . talking between shifts and stuff." Concerning Wild's health, Nord stated "the only
thing I recall is, one lady asked about his [Wild's health] . . . I said that he's had some
blood pressure issues. And I said: just the joys of growing old."
It is important to note that Supreme Court precedent strongly implies that some
speech may be protected and some may not. Connick, 461 U.S. at 146. Only when
a public employee speaks upon matters of public concern, not matters of personal
interest, is a federal court an appropriate forum in which to review the wisdom of a
personnel decision made by a public agency. Id. "Whether an employee's speech
addresses a matter of public concern must be determined by the content, form, and
context of a given statement, as revealed by the whole record." Id. at 147-48. And,
this inquiry into the protected status of speech is one of law, not fact. Id. at 148 n.7.
Certainly, political speech is often considered to be on a matter of public concern and
deserving of First Amendment protection. Id. at 145 ("The First Amendment was
fashioned to assure unfettered interchange of ideas for the bringing about of political
and social changes desired by the people. . . . Accordingly, the Court has frequently
reaffirmed that speech on public issues occupies the highest rung of the hierarchy of
First Amendment values and is entitled to special protection." (internal quotations
omitted)). But, the Supreme Court continuously emphasizes the diminished value of
false factual statements. United States v. Alvarez, 132 S. Ct. 2537, 2560-61 (2012)
(cataloging the various cases in which the Court has concluded false speech has little
to no value). Accordingly, if some of Nord's campaign statements were untrue, as
contended by Wild, they may be deserving of less protection and were likely more in
Nord's personal interest than items of public concern. Stated differently, the First
Amendment permits Nord to utter matters of personal concern as he may wish but
such matters are not necessarily protected by the First Amendment. Nord's
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statements, however, even if viewed as a matter of public concern, "were not of such
public and social importance as to override the [sheriff's] substantial interest in
maintaining" the efficiency and reputation of the workplace, given the nature of the
office, to overcome the employment of the Pickering/Connick balancing test. Crain,
920 F.3d at 1411 (internal quotation omitted).
Based upon the foregoing analysis, we conclude that use of the
Pickering/Connick balancing test is clearly called for in this dispute. And, based
upon the use of such test, we conclude (1) that at least some of Nord's campaign
speech does not merit First Amendment protection; (2) that even if Nord's speech was
fully protected by the Constitution, Wild could have reasonably believed that the
speech would be at least potentially damaging to and disruptive of the discipline and
harmony of and among co-workers in the sheriff's office and detrimental to the close
working relationships and personal loyalties necessary for an effective and trusted
local policing operation, Hinshaw, 436 F.3d at 1005, and, the above-mentioned
adverse employer-employee circumstance did not need to become manifest in order
to be acted upon promptly by Wild, Connick, 461 U.S. at 151-52; (3) that applying
the second step of the qualified immunity inquiry, and considering North Dakota law
and well-established state and federal jurisprudence, and especially the advice given
by the Walsh County attorney and its human resources consultant, Sheriff Wild could
have logically and rationally believed that his decision to terminate Nord was well
within the breathing room accorded him as a public official in making a reasonable,
even if mistaken, judgment under the circumstances. Stanton, 134 S. Ct. at 5; and
thus (4) that Wild, as a matter of law, is entitled to qualified immunity to shield him
from any liability claimed to have arisen through violation of the First Amendment
as asserted by Nord. Coker, 734 F.3d at 841-42.
The district court, however, never attempted to reach the Pickering/Connick
balancing test, stating, instead that Wild failed to establish that Nord's speech
"disrupted the workplace." This holding, which we review de novo, ignored the
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obvious fact that Nord was never in the "workplace" after the conclusion of the
November 2010 sheriff's election. But, as earlier noted, Supreme Court precedent
does not require him to have been active in the workplace as a condition precedent
to the employment of the Pickering/Connick test. We repeat, there is "no necessity
for an employer to allow events to unfold to the extent that the disruption of the office
and the destruction of working relationships is manifest before taking action."
Connick, 461 U.S. at 152.
As an aside, on appeal the parties dispute whether we should apply the
Pickering/Connick test, as we did, or the test developed in Elrod v. Burns, 427 U.S.
347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980) (the Elrod/Branti test). While
the district court does not discuss this test, we pause briefly to do so and find that it
does not support Nord's claim.
Subsequent to Pickering, through its analysis in Elrod and Branti, "the Supreme
Court established that the termination of a government employee based on the
employee's political affiliation violates the First Amendment unless the hiring
authority can demonstrate that party affiliation is an appropriate and reasonable
requirement for the effective performance of the public office involved." Hinshaw,
436 F.3d at 1005. Under the Elrod/Branti set of cases, the court may forego the
Pickering balancing test. Id. In such cases, the hiring authority must demonstrate
that party affiliation is an appropriate and reasonable requirement for the effective
performance of the public office involved. Id. "'[T]he 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.'" O'Hare
Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 719 (1996) (alteration in
original) (quoting Branti, 445 U.S. at 518).
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This circuit has held that "[i]f discharge solely because of party affiliation is
found, this will involve applying the narrow [Elrod/Branti] justification test," but "[i]f
a discharge for overt expressive conduct is found, it will involve application of the
[Pickering/Connick] balancing test." Hinshaw, 436 F.3d at 1005 (first alteration in
original) (quotation omitted). Where speech is intermixed with a political affiliation
requirement, the Pickering/Connick balancing is appropriate. Id. at 1006; see also
O'Hare Truck Serv., 518 U.S. at 719. Given the nature of Nord's claim–that he was
fired in accordance with the "unwritten rule" and for statements he made along the
campaign trail–his claim is best characterized as an "intermixed case," necessitating
the Pickering/Connick test. And, even when the Pickering/Connick balancing is
applied, rather than the Elrod/Branti test, the "employee's status as a policymaking
or confidential employee," traditionally considered under Elrod/Branti, weighs in
favor of the government's side of the balancing scale. Hinshaw, 436 F.3d at 1007.
At bottom, the nature of Nord's position is more similar to that of the deputies
in Jenkins v. Medford, where deputy sheriffs were fired for campaigning for the
sheriff's opponents. 119 F.3d 1156 (4th Cir. 1997). There, the Fourth Circuit held
"North Carolina deputy sheriffs may be lawfully terminated for political reasons
under the Elrod-Branti exception to prohibited political terminations." Id. at 1164.
The court in Jenkins recognized that the North Carolina deputy sheriffs acted as
agents for the sheriff, similar to North Dakota deputies. Id. at 1162. The court
reasoned that where the position "resembles a policymaker, a communicator, or a
privy to confidential information, then loyalty to the sheriff is an appropriate
requirement for the job," and concluded that "newly elected or re-elected sheriffs may
dismiss deputies either because of party affiliation or campaign activity" because
either "basis serves as a proxy for loyalty to the sheriff." Id. at 1164 (internal
quotation omitted). For reasons similar to those expressed in Jenkins, loyalty is an
appropriate requirement for the deputy sheriff position in the instant case, and
accordingly the confidential nature of Nord's employment weighs heavily on the
government's side of the Pickering/Connick balancing, which conclusion likewise
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supports our denial of qualified immunity because Wild's actions did not violate a
clearly established constitutional right.
III. CONCLUSION
For the reasons stated herein, we reverse the district court's decision to deny
qualified immunity to Wild on Nord's First Amendment claim and remand for further
proceedings not inconsistent with this opinion.
SHEPHERD, Circuit Judge, dissenting.
I respectfully dissent from the majority’s reversal of the district court. The
majority states that in order to determine whether Nord’s free speech rights were
clearly established it is necessary to decide whether “his particular speech was
protected by the First Amendment.” Ante at 5. However, Wild has conceded that
Nord’s speech was protected and that he terminated Nord for exercising his First
Amendment rights, and the majority has accepted this concession. Thus, we need not
determine anew whether Nord’s speech was protected. After Wild’s concession, and
the majority’s acknowledgment that Nord’s First Amendment rights had been
violated, the sole remaining question under qualified immunity review is whether
Nord’s right—to engage in protected campaign speech directed against his opponent
and boss without being terminated—was clearly established, a question to which an
analysis under the two-step Pickering/Connick balancing test is unwarranted.
Because Nord’s rights were clearly established, and because the Elrod/Branti
exception does not apply, I would affirm the denial of qualified immunity.
I.
As the majority notes, the qualified immunity inquiry is two-fold: (1) whether
the facts asserted demonstrate a violation of plaintiff’s constitutional right and
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(2) whether such right was clearly established at the time of the defendant’s conduct.
Winslow v. Smith, 696 F.3d 716, 731 (8th Cir. 2012). Under the first step, we must
determine whether Wild violated Nord’s constitutional right. Id. The answer to that
question is clear. Wild, in his brief to the district court and during oral argument
before this court, conceded “solely for purposes of summary judgment, that Nord was
terminated for his election campaign speech – or put another way, Nord was
terminated for exercising First Amendment rights.” Therefore, I agree with the
majority’s conclusion that, for purposes of further inquiry, the first prong of the
qualified immunity analysis has been established.5
I part with the majority’s reasoning, however, in its treatment of the second
prong of the qualified immunity analysis. There, the majority relies on Sexton v.
Martin, 210 F.3d 905, 908 (8th Cir. 2000), and applies the Pickering/Connick
balancing test to ascertain whether Nord’s speech was protected by the First
Amendment, a question already answered in the affirmative by Wild’s concession,
which the majority has accepted. Moreover, inquiry under the Pickering/Connick
balancing test does not occur at the second step of the qualified immunity analysis but
appropriately occurs at the first step to determine whether a constitutional violation
occurred.
In adverse employment actions involving the First Amendment and the
qualified immunity defense, the Pickering/Connick test is employed to determine
5
Despite our discretion to decide which of the two prongs of the qualified
immunity analysis to address first, Pearson v. Callahan, 555 U.S. 223, 236 (2009),
both the majority and I have chosen to begin with and accept as established the first
step of the qualified immunity analysis. As such, we have accepted that a
constitutional violation has occurred and, thus, have already determined that Nord’s
speech was indeed protected. Accordingly, Wild, through his concession and our
acceptance of that concession, in my opinion, has not placed the Pickering/Connick
test at issue.
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whether an employee suffered an adverse employment action for engaging in
constitutionally protected activities. See Rankin v. McPherson, 483 U.S. 378, 384
(1987). Accordingly, by applying the Pickering/Connick test, we analyze whether an
employee’s First Amendment rights were violated, a determination that occurs at the
first step of the qualified immunity analysis. Although the majority relies on this
court’s qualified immunity framework in Sexton, Sexton contains an unfortunate
description of the qualified immunity analysis that erroneously misplaces the
application of the Pickering/Connick test in the second half of the analysis. Such
placement does not fit squarely with binding authority in this circuit.
For example, in Kincade v. City of Blue Springs, Missouri, the case that the
Sexton Court relied on for its analytical framework, we first analyzed whether the
employee was discharged for expressing constitutionally-protected speech.6 64 F.3d
389, 395 (8th Cir. 1995). The court determined, applying the Pickering/Connick test,
6
As we have previously explained,
Courts addressing claims by public employees who contend that they
have been discharged for exercising their right to free speech must
employ a two-step inquiry. Dunn v. Carroll, 40 F.3d 287, 291 (8th Cir.
1994). First, the court must determine whether the speech may be
described as “speech on a matter of public concern.” Connick v. Myers,
461 U.S. 138, 146 (1983). If so, the second step involves balancing the
employee’s right to free speech against the interests of the public
employer. Rankin, 483 U.S. at 388 (citing Pickering v. Board of Educ.,
391 U.S. 563, 568 (1968)). The focus is on striking “a balance between
the interests of the [employee], as a citizen, in commenting upon matters
of public concern and the interest of the [public employer] in promoting
the efficiency of the public services it performs through its employees.”
Pickering, 391 U.S. at 568.
Kincade, 64 F.3d at 395.
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that the speech was in fact protected and a constitutional violation occurred when the
employee was discharged from his employment based on his speech. Id. at 396-98.
We then proceeded to determine whether the employee’s right to utter
constitutionally-protected speech was clearly established. Id. at 398. Thus, proper
application of the Pickering/Connick test determines whether the employee’s rights
were violated, not whether the right was clearly established.
Even prior to Kincade, this circuit employed the Pickering/Connick test solely
to determine whether there was a constitutional violation. See Dunn v. Carroll, 40
F.3d 287, 291 (8th Cir. 1994); see also Lewis v. Harrison Sch. Dist. No. 1, 805 F.2d
310, 316 (8th Cir. 1986); Brockell v. Norton, 732 F.2d 664, 667 (8th Cir. 1984).
Indeed, more recently, we have continued to apply the Pickering/Connick test when
determining whether a constitutional violation occurred. See, e.g., Shockency v.
Ramsey Cnty., 493 F.3d 941, 948 (8th Cir. 2007); Lindsey v. City of Orrick, Mo., 491
F.3d 892, 898 (8th Cir. 2007) (proceeding to the second step of the qualified
immunity analysis after determining that, under the Pickering/Connick test, the
employee had successfully asserted a constitutional violation under the first step);
Hinshaw v. Smith, 436 F.3d 997, 1004, 1008 (8th Cir. 2006) (determining that
because there was no constitutional violation under the Pickering/Connick test, there
was no need to determine whether the right was clearly established). Accordingly,
the Pickering/Connick test properly determines the first step of the qualified
immunity analysis. Although, as the majority notes, the Pickering/Connick test may
be considered when determining whether a right was clearly established, such
consideration only occurs once the Pickering/Connick test has already been put into
play when determining whether a constitutional violation occurred. See Kincade, 64
F.3d at 398 (“‘[W]hen Pickering’s fact-intensive balancing test is at issue, the
asserted First Amendment right can rarely be considered ‘clearly established’ . . . .’”
(alteration in original) (emphasis added) (quoting Buzek v. Cnty. of Saunders, 972
F.2d 992, 997 (8th Cir. 1992)); see also Lindsey, 491 F.3d at 901 (rejecting the
employer’s argument that the employee’s right was not clearly established under the
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Pickering balancing test because the Pickering balancing test had not been placed in
issue when analyzing whether a constitutional violation occurred).
Because the Pickering/Connick test informs the first step of the qualified
immunity analysis and the majority has already acknowledged that the first step has
been met, in my opinion, the majority erred in stating that “we must determine
whether or not Nord’s particular speech was protected by the First Amendment,” ante
at 5, and, thus, was mistaken in its conclusion that, under the Pickering/Connick
balancing test, Nord’s rights were not clearly established. Consistent with a proper
qualified immunity framework, I would hold that Nord’s First Amendment rights
were clearly established and the qualified immunity defense fails.
We have said that “[n]o right is more clearly established in our republic than
freedom of speech.” Casey v. City of Cabool, Mo., 12 F.3d 799, 804 (8th Cir. 1993).
“‘[T]he First Amendment has its fullest and most urgent application to speech uttered
during a campaign for political office.’” Burson v. Freeman, 504 U.S. 191, 196
(1992) (quoting Eu v. S. F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989)
(internal quotation marks omitted)); see Duckworth v. Ford, 995 F.2d 858, 861 (8th
Cir. 1993) (concluding that it was clearly established that the employee’s opposition
to his employer’s candidacy and his support of another person’s was protected by the
First Amendment). We have consistently held that where a law enforcement officer’s
speech does not adversely affect the workplace, the right to utter such speech is
clearly established. See Buzek, 972 F.2d at 997; Powell v. Basham, 921 F.2d 165,
168 (8th Cir. 1990) (per curiam). Here, because Wild fired Nord for engaging in
campaign speech having no adverse effect on the sheriff’s office, Nord’s right to
express his speech during the campaign without suffering an adverse employment
action was clearly established.
Wild’s solicitation of the advice of counsel does not bolster his argument that
Nord’s rights were not clearly established. While Wild’s reliance on counsel’s advice
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may be a factor in the qualified immunity analysis, see Kincade, 64 F.3d at 399, the
counsel must be properly informed so that the legal parameters can be fully explained,
Watertown Equip. Co. v. Norwest Bank Watertown, N.A., 830 F.2d 1487, 1495 (8th
Cir. 1987); see also Lindsey, 491 F.3d at 901-02. It is clear that Wild failed to inform
counsel that he intended to enforce the “unwritten rule” that a deputy who runs
against the sheriff in an election will be fired if the sheriff wins. Counsel admitted
that had Wild told her this information, she would have given it more thought and
advised accordingly.
II.
Even if we were to refuse to accept Wild’s concession and apply the
Pickering/Connick test under the first step of the qualified immunity analysis, a
constitutional violation still occurred. The majority makes no decision as to whether
all of Nord’s campaign statements were matters of public concern but instead
concludes that, even if all Nord’s speech merits protection, it was reasonable for Wild
to believe that the speech would be potentially disruptive to the sheriff’s office. We,
however, have consistently required evidence demonstrating workplace disruption
before the interests of the employee and the employer are balanced. See, e.g.,
Shockency, 493 F.3d at 949-50; Hall v. Mo. Highway & Transp. Comm’n, 235 F.3d
1065, 1068 (8th Cir. 2000); Burnham v. Ianni, 119 F.3d 668, 678 (8th Cir. 1997) (en
banc); Kincade, 64 F.3d at 398; Dunn, 40 F.3d at 293. “Mere allegations [that] the
speech disrupted the workplace or affected morale, without evidentiary support, are
insufficient.” Lindsey, 491 F.3d at 900.
As the majority notes, in some situations an employer need not wait for the
adverse effects of certain speech to manifest prior to taking an employment action,
such as when it is “reasonably believed [the speech] would disrupt the office,
undermine his authority, and destroy close working relationships.” Connick, 461
U.S. at 154. This is not such case. There is no evidence in the record providing a
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reasonable basis for Wild’s belief that disruption would occur. In fact, Wild testified
that, during the campaign period, there were no complaints about how the office was
run nor were there any communication problems between the employees. Moreover,
Wild agreed that all the employees acted professionally during the campaign.
Importantly, Nord was fired after the campaign and the election. Accordingly,
at the time of Nord’s firing, any speech that could potentially disrupt the workplace
had already been uttered, and, as evidenced by the record and Wild himself, Nord’s
campaign speech had not affected the morale nor the professionalism of the
employees. Moreover, Wild concedes that he not only fired Nord for his campaign
speech, but also fired Nord for running against him. This concession further
demonstrates that after the election, Wild’s motivation for firing Nord was the so-
called “unwritten rule” rather than any potential disruption due to Nord’s speech.
“[I]f the defendants have failed to produce evidence weighing against
permitting the employee’s expressive conduct, or if there is a question of fact as to
whether they reasonably believed the conduct to be disruptive, then the defendants
are not entitled to qualified immunity.” Dunn, 40 F.3d at 293 (citations omitted).
Here, there is no evidence of disruption or at most, there is a question of fact as to
whether Wild reasonably believed Nord’s conduct would be disruptive. Thus, even
if we forgo Wild’s concession, I would hold that Wild violated Nord’s clearly
established constitutional right to engage in campaign speech. See Buzek, 972 F.2d
at 997.
III.
I also part with the majority’s conclusion that Nord held a confidential position.
The majority, in reliance on Hinshaw, determined that the Pickering/Connick test
applies rather than the Elrod/Branti exception because this case involves both speech
and political affiliation. Although an employee’s status as a policymaking or
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confidential employee is a factor that weighs in favor of the employer under the
balancing prong of the Pickering/Connick test, that test is not at play in this case due
to Wild’s concession. And, even if applied, Appellants have failed to produce
sufficient evidence in order to trigger the balancing test. Thus, whether Nord is a
confidential or policymaking employee is of no consequence.
Even if we were to consider Nord’s positional status and apply the Elrod/Branti
test instead, I find unpersuasive the majority’s reliance on a Fourth Circuit case in
determining that Nord holds a position of confidence. This court has acknowledged
that although “other circuits have determined that deputy sheriffs held policymaking
positions and could be transferred for political reasons, . . . these cases are not
controlling here because they turned on state law provisions in different
jurisdictions.” Shockency, 493 F.3d at 950-51. We have to look to the applicable
state laws and the actual duties assigned to deputy sheriffs in Walsh County, North
Dakota to determine whether political affiliation is essential to Nord’s effective
performance of his position as deputy sheriff. Id. at 951; Billingsley v. St. Louis
Cnty., 70 F.3d 61, 64 (8th Cir. 1995).
Here, Nord’s duties included the routine tasks of general police work,
prevention and detection of crime, protection of life and property, and the
performance of duties as assigned. Nothing in the Walsh County Deputy Sheriff’s
job description empowers the deputy with any discretionary function nor can it be
said, based on this job description, that the deputy sheriff “‘performs virtually all the
duties attendant to the actual duties of the sheriff himself.’” Horton v. Taylor, 767
F.2d 471, 475 (8th Cir. 1985) (quoting McBee v. Jim Hogg Cnty., Tex., 703 F.2d 834,
839 (5th Cir. 1983), on reh’g, 730 F.2d 1009 (5th Cir. 1984)). Viewing the deputy
sheriff and sheriff’s relationship in the abstract is insufficient to establish the type of
relationship necessary under Elrod/Branti.
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Indeed, North Dakota case law acknowledges that “the official acts of a deputy
sheriff are the acts of the sheriff.” Turnquist v. Kjelbak, 77 N.W.2d 854, 857 (N.D.
1956). This broad statement, however, says nothing about the discretionary functions
of a deputy nor whether the deputy handles confidential matters, but rather establishes
that the deputy is essentially the sheriff’s agent and, thus, the sheriff is responsible
for the deputy’s acts. As we said in Horton, the “Branti test is a functional one,
focusing on the actual duties an employee performs.” Horton, 767 F.2d at 477
(emphasis added). Thus, the focus should not be on whether an agency exists but on
the actual duties assigned within that agency. Here, those duties did not include any
assistance in making policies nor did it involve any tasks requiring political loyalty
to the sheriff.
“Branti requires that a distinction be drawn between political loyalty and other
kinds.” Id. at 476. It is one thing to say “that partisan feelings will so affect an
employee’s work that his effectiveness and efficiency will be influenced,” and
another that “raw political patronage”alone justifies a dismissal. Id. at 477. Because
Nord’s position as a deputy was not highly discretionary, policymaking, or
confidential and because, as evidenced from the record, Nord’s campaign against the
sheriff did not adversely affect his effectiveness or efficiency as a deputy— Nord’s
tasks, at best, involved general police work—Nord was fired simply for running
against Wild and not because “party affiliation is an appropriate requirement for the
effective performance of [Nord’s job].” Branti v. Finkel, 445 U.S. 507, 518 (1980).
Accordingly, Nord’s dismissal is more akin to a dismissal based on raw political
patronage and such dismissals are not enough to satisfy the Elrod/Branti exception.
Horton, 767 F.2d at 477. Finally, the fact that Nord may have been an at-will
employee does not mean he can be fired in violation of his constitutional rights.
O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 725-26 (1996).
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IV.
Nord was fired in violation of his First Amendment rights which were clearly
established under the law. He did not hold a confidential or policymaking position,
nor is political affiliation essential to the performance of his duties. Accordingly, the
Appellants have failed to satisfy the elements of the qualified immunity defense.
___________________
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