Caudill v. Hollan

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0472p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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TERESA CAUDILL, et al. (04-6017);
Plaintiffs-Appellants, -
LYNN BUTLER (04-6018),
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Nos. 04-6017/6018
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v. >
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Defendant-Appellee. -
DORIS HOLLAN,
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Appeal from the United States District Court
for the Eastern District of Kentucky at Ashland.
No. 03-00030—Henry R. Wilhoit, Jr., District Judge.
Argued: July 21, 2005
Decided and Filed: December 14, 2005
Before: KENNEDY, CLAY, and GILMAN, Circuit Judges.
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COUNSEL
ARGUED: Michael J. Curtis, CURTIS LEGAL SERVICES, INC., Ashland, Kentucky, for
Appellants. Phillip Bruce Leslie, McBRAYER, McGINNIS, LESLIE & KIRKLAND, Greenup,
Kentucky, for Appellee. ON BRIEF: Michael J. Curtis, CURTIS LEGAL SERVICES, INC.,
Ashland, Kentucky, for Appellants. Phillip Bruce Leslie, McBRAYER, McGINNIS, LESLIE &
KIRKLAND, Greenup, Kentucky, for Appellee.
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OPINION
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KENNEDY, Circuit Judge. Plaintiffs appeal from the district court’s dismissal of their
claims against Defendant Doris Hollan, County Clerk for Boyd County, Kentucky. Plaintiffs allege
that because they supported Defendant’s opponent in her election, Defendant failed to reappoint
them to positions as deputy county clerks in violation of their First Amendment rights of free speech
and free association and in violation of their Fourteenth Amendment rights. Finding that the district
court improperly granted Defendant Hollan qualified immunity with respect to certain Plaintiffs’
claims against Defendant Hollan, we AFFIRM the judgment of the district court in part, and
REVERSE it in part.
1
Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 2
BACKGROUND
Plaintiffs Teresa Caudill, Cheryl Fields, and Patty Conlin are all former Boyd County,
Kentucky, deputy county clerks. All three had served as deputy county clerks for several years, but
they were not reappointed to their positions after Hollan won election in 2002 and took office in
2003. Plaintiff Lynn Butler is the former Boyd County, Kentucky, County Clerk. She was a former
deputy clerk who was appointed to that office after the death of the previously elected clerk. She
never sought election to the office of County Clerk either before or after her appointment. During
the election, Plaintiffs supported Hollan’s opponent.
After winning the primary and the election, Defendant received a memo, dated December
16, 2002, that the county attorney circulated to all newly-elected county executives. The memo
specifically warned new county executives not to use patronage dismissals. Defendant provided
written notice to Plaintiffs of her decision not to rehire them on January 3, 2003.
Plaintiffs filed suit pursuant to 42 U.S.C. § 1983, claiming that they were not rehired (a
constructive discharge) in violation of their First Amendment rights of free speech and free
association, as applied to state actors through the Fourteenth Amendment, because they had
supported Defendant Hollan’s opponent. Defendant filed a motion to dismiss and for summary
judgment. Defendant Hollan denied that she failed to reappoint Plaintiffs for political reasons. She
also argued, in the alternative, that had she engaged in patronage dismissals as Plaintiffs alleged, she
deserved qualified immunity, because the law regarding patronage dismissals of Kentucky deputy
county clerks was not clearly established.
On August 28, 2003, the district court dismissed Plaintiff Butler’s claims against Defendant
Hollan, reasoning that as the former County Clerk, Butler did not have any expectation of continued
employment or of being rehired. The court also dismissed all of Plaintiffs’ claims against Defendant
Hollan in her individual capacity, relying primarily on this court’s decision in Cope v. Heltsley, 128
F.3d 452 (6th Cir. 1997).
The parties conducted discovery on the deputy county clerk Plaintiffs’ remaining claims.
On August 11, 2004, in a second opinion, the district court dismissed the remaining claims against
Defendant Hollan in her official capacity as County Clerk. The court held that Plaintiffs had
presented no evidence that the office of the County Clerk had final authority to establish county
policy with respect to hiring matters. The court held that such a finding would be a necessary
prerequisite to Plaintiffs recovering against Defendant1Hollan in her official capacity. The opinion
also directed that judgment be entered for defendants. Plaintiffs appeal. Their appeals have been
consolidated. Plaintiffs argue that the district court should not have granted summary judgment to
Hollan in either her individual or official capacities.
ANALYSIS
A. Jurisdiction
Although neither party raised the issue, before we address the merits of Plaintiffs’ appeals,
we must determine, sua sponte, whether we have jurisdiction over all aspects of those appeals. Fed.
R. Civ. P. 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the court
1
Plaintiffs originally sued the Boyd County Fiscal Court and several individuals in both their individual and
official capacities: Defendant Hollan (the new Boyd County Clerk), Bill Scott (the Boyd County Judge Executive),
Marvin Meredith (a Boyd County Commissioner), Clarence Jackson (another Boyd County Commissioner), and Carl
Tolliver (also a Boyd County Commissioner). The district court dismissed all claims against every defendant except
Defendant Hollan in its August 28, 2003 order. Plaintiffs do not appeal those dismissals.
Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 3
lacks jurisdiction of the subject matter, the court shall dismiss the action.”). In their notice of
appeal, the deputy clerk Plaintiffs failed to appeal from the judgment. The appeal was taken from
the “Memorandum Opinion and Order entered in this action on August 11, 2004.” In the August
11th order, the district court directed the entry of final judgment in the case. It also disposed of the
deputy clerks’ claims against Defendant Hollan in her official capacity as clerk. In their briefs on
appeal, however, Plaintiff deputy clerks also contest the district court’s August 28, 2003 opinion and
order on their claims against Defendant Hollan in her individual capacity.2 Federal Rule of
Appellate Procedure 3(c)(1)(B) requires that a notice of appeal: “designate the judgment, order, or
part thereof being appealed.” The question that confronts us, then, is whether we have jurisdiction
to hear the appeal of the August 28, 2003 order dealing with individual liability, which is not
mentioned in the notice of appeal.
For the reasons that follow, we conclude that we can reach all relevant aspects of the deputy
clerk Plainiffs’ appeal. It has long been the rule “that an appeal of a final judgment draws into
question all prior non-final rulings and orders.” McLaurin v. Fischer, 768 F.2d 98, 101 (6th Cir.
1985). We hold that the notice of appeal sufficiently complies with Fed. R. App. P. 3 to give us
jurisdiction in that the opinion of August 11, 2004, which plaintiffs do list, ordered the entry of the
final judgment in the case. An appeal referencing an order that directs entry of judgment in a case
is a sufficient equivalent to appealing the judgment itself, even though the judgment is entered as
a separate document. In the alternative, if the notice of appeal was technically deficient, we hold
that such a technical deficiency should not prevent us from reaching the merits of the appeal, nor
does such a technical deficiency divest us of jurisdiction to hear the appeal. To rule otherwise would
be to rely on an overly technical reading of Fed. R. App. P. 3(c). Several decisions support finding
jurisdiction under analogous situations.
In McLaurin, the plaintiff’s notice of appeal referred solely to the district court’s order,
which embodied the jury’s verdict on a federal age discrimination claim. Id. The Plaintiff sought
to challenge, however, earlier dismissals of state law claims and an earlier grant of a directed verdict
motion, in addition to the order specifically mentioned in the notice of appeal. Id. The defendant
argued that because the plaintiff only mentioned the order relevant to the federal age discrimination
claim on appeal, the panel could address only that issue and not the other issues. Id. This court
disagreed with the defendant, holding:
In this case, by appealing from the district court’s final order, Dr. McLaurin
effectively preserved for review all of the district court’s non-final rulings and
orders, including the directed verdict and state law claim rulings. Furthermore, even
assuming that the notice of appeal failed to properly preserve these issues for appeal,
Dr. Fischer has failed to demonstrate any prejudice due to the alleged error;
consequently, any error committed by appellant is harmless.
Id. at 102 (italics added for emphasis).
In Boburka v. Adcock, 979 F.2d 424 (6th Cir. 1993), this court allowed a defendant to appeal
a court’s grant of a directed verdict in favor of the plaintiff despite the fact that his notice of appeal
specified only that the defendant was appealing from the district court’s order denying his post-trial
motions for judgment as a matter of law or for a new trial. Id. at 426. The notice of appeal did not
mention either the final judgment or the directed verdict. Id. This circuit, relying on Peabody Coal
Co. v. Locals 1734, 1508 & 1548, 484 F.2d 78 (6th Cir. 1973), and the clear intent of the defendant,
2
In contrast, in Plaintiff Lynn Butler’s notice of appeal, she appeals from “the Court’s Memorandum Opinion
and Order entered on August 28, 2003; the Court’s Order overruling Plaintiff’s Motion to set aside or vacate the 8/28/03
Order entered on October 6, 2003; and, the Memorandum Opinion and Order entered in this action on August 11, 2004.”
Plaintiff Butler thus appeals from all relevant orders in her notice of appeal.
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found that although “[s]trictly construed, the notice of appeal does not preserve the denial of the
directed verdict issue,” the “notice of appeal adequately preserved for appeal all the issues he raises
before this court.” Id.
In Crawford, et al. v. Roane, et al., 53 F.3d 750 (6th Cir. 1995), plaintiffs filed a notice of
appeal that sought review of the order denying their motion for summary judgment and granting
defendant’s motion for summary judgment. Id. at 752. In their brief, however, the plaintiffs also
“discusse[d] the Trustees’ failure to furnish information and ma[de] clear that the [Plaintiffs] also
s[ought] review of the district court’s denial of their motion for leave to file an amended complaint.”
Id. The court held that, because the brief put the defendants on notice as to what was being
appealed, they suffered no prejudice as a result of the plaintiffs’ failure to specify that they desired
appellate review of the other subjects. Id. at 752-53. Cf. Sanabria v. U.S., 437 U.S. 54, 68 n.21
(1978) (“A mistake in designating the judgment appealed from is not always fatal, so long as the
intent to appeal from a specific ruling can fairly be inferred by probing the notice and the other party
was not misled or prejudiced.”) (citations omitted).
Our decision in United States v. Universal Mgmt. Servs., Inc., 191 F.3d 750, 756 (6th Cir.
1999), is not to the contrary. In Universal, a district court denied summary judgment for the
defendants and granted summary judgment to the U.S. Government. Id. at 754. The district court’s
grant of summary judgment resulted in a permanent injunction prohibiting the defendants from
distributing a medical device they claimed would help alleviate pain. Id. 3The defendants made a
motion to reconsider in which they argued that they deserved a new “trial” due to the malfeasance
of their original counsel and because one of the individual defendants could not be personally
subject to the injunction. Id. at 756. Defendants’ notice of appeal stated only that they appealed
from the district court’s order denying them summary judgment and granting summary judgment
to the United States. Id. In their briefs on appeal, however, the defendants discussed arguments
related to both issues raised in their motion to reconsider. Id. The government responded that
because it was not prejudiced by the lack of notice, the court of appeals should address the
arguments. Id. This court held that it lacked jurisdiction to review the items raised in the motion
to reconsider because the notice of appeal did not specifically indicate that the defendants appealed
from that motion. Id. at 756-67. The court did, in the alternative, address the merits of the two
points and found no errors with respect to either issue. Id. at 757-60.
Universal Management Services stands for a related but different proposition than the other
cases previously discussed. In short, our rule is that we will entertain arguments on all objections
and asserted errors prior to the final disposition of a case if a party indicates in its notice of appeal
that it appeals either the final judgment or the final order in the case. We will not, however, absent
specific mention in the notice of appeal, entertain issues raised in post-judgment motions if the
notice of appeal states only that the appeal is from the final order or the final judgment. This rule
is understandable because most pre-judgment decisions made by a trial court are not appealable until
the entry of final judgment. To the extent that the post-judgment motions relate to issues raised
before judgment, the appellate court will deal with them anyway, as it did in Universal. If the issues
raised only in post-judgment motions were new (in that they were arguments not raised prior to a
final disposition of the case), then considerations of notice might require the party raising the issues
be more specific if it wishes to discuss them on appeal to avoid prejudicing either the trial court or
the other party.
In this case, the deputy clerk Plaintiffs did not specifically mention the judgment in their
notice of appeal. Like in McLaurin and Bobruka, however, they did appeal from the final
3
Our opinion does not make clear what the movants meant by “trial” as the case was apparently dismissed on
summary judgment.
Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 5
memorandum and opinion in the case. Under the logic of our prior cases, then, the notice of appeal
provided by Plaintiffs, here, is sufficient. In addition, in this case, the Memorandum Opinion and
Order of August 11, 2004 indicates that “[a] judgment in favor of the Defendant will be entered
contemporaneously herewith.” The judgment was entered that same day. Thus, in light of the fact
that the August 11th Memorandum Opinion and Order ordered the filing of the judgment, meaning
that the judgment would not have been filed were it not for the court’s order, it would appear that
by appealing this opinion, Plaintiffs intended to appeal the portion of the opinion ordering the entry
of judgment. Such an appeal is tantamount to having appealed the judgment itself.
If the notice of appeal is technically deficient, it is readily apparent that neither this court nor
the Defendant have been prejudiced in any way. Defendant understood that Plaintiffs intended to
appeal the August 23, 2003 order because she addressed those arguments in her brief. She suffered
no prejudice, and because the parties briefed their arguments, neither did this court. Thus, even if
the notice of appeal is technically deficient, because no one is prejudiced by that defect, under our
precedent, we should address the merits of the appeal.
Finally, the Supreme Court has held that if a clerk does not enter judgment on a separate
document in a case, but the parties treat the judgment as if it has become final, a court of appeals
may still treat the judgment as final despite the fact that a separate document entering the judgment
is normally required. Bankers Trust Co. v. Mallis, 435 U.S. 381, 382-84 (1978). While it is true that
the facts of this case are not directly related to Bankers Trust Co., a useful analogy can be drawn.
In Bankers Trust Co., obviously, the party appealing did not reference a final judgment in their
notice of appeal as no separate document existed. The party apparently appealed from the final
order issued by the district court. If the entry of a separate document for a final judgment is
unnecessary to allow an appeal in a case like Bankers Trust Co., it seems that we are already treating
a final court order as synonymous with a separate judgment for the purposes of appeal in some
circumstances. If we were to hold, in this case, that a party that references the final order of a court,
but does not indicate that it also appeals the judgment, does not appeal the judgment, we would be
upholding form for form’s sake, and would not advance justice in this case, or in general.
While the requirements of Fed. R. App. P. 3(c)(1) are jurisdictional, Torres v. Oakland
Scavenger Co. et al., 487 U.S. 312, 317 (1988); United States v. Universal Mgmt. Servs., Inc., 191
F.3d 750, 756 (6th Cir. 1999), our precedent, Supreme Court Precedent and Fed. R. App. P. 3(c)(4)
also require that we construe the jurisdictional requirements of Fed. R. App. P. 3(c) liberally. See
Foman v. Davis, 371 U.S. 178, 180-81 (1962); Torres, 487 U.S. at 316-17. Thus, our rule is that
Fed. R. App. P. 3(c)(1) is a jurisdictional rule whose requirements should be liberally construed and
applied.
B. Patronage Dismissal of Deputy County Clerks
Because we have jurisdiction over this appeal, we now turn to the merits. This court reviews
a grant of summary judgment de novo. Adams v. City of Auburn Hills, 336 F.3d 515, 518 (6th Cir.
2003). For the purposes of this appeal, we construe the evidence in the light most favorable to
Plaintiffs and draw all reasonable inferences in their favor. Aiken v. City of Memphis, 190 F.3d 753,
755 (6th Cir. 1999) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587, 106 S. Ct. 1348 (1986)). We first address the claims of the three deputy county clerk Plaintiffs.
We then address the claims of former County Clerk Lynn Butler, who seeks to be hired as a deputy
clerk.
Since the Supreme Court issued its opinion in Elrod v. Burns, 427 U.S. 347 (1976),
patronage dismissals (i.e., dismissals for failure to support a particular party or candidate) have been,
Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 6
in general, unconstitutional.4 The Supreme Court in Branti v. Finkel, 445 U.S. 507 (1980), clarified
this rule by affirming that, although patronage dismissals were, in general, unconstitutional, “party
affiliation may be an acceptable requirement for some types of government employment.” Id. at
517. The Branti court indicated that the plaintiff must make out a prima facie case that he or she
was discharged because of his or her political affiliation. See id. The defendant then must show that
the plaintiff’s job is of the type that would qualify for an exception to the general rule. Id. The
Branti court described the types of positions that would qualify for the exception as policymaking
positions. Id. This court, in McCloud v. Testa, 97 F.3d 1536, 1557 (6th Cir. 1996), interpreted
Branti by outlining four categories that qualified for the Branti exception:
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 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 advisors who spend a significant 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 communications to category one positions, category two
positions or confidential advisors;
Category Four: positions that are a 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.
Id. at 1557 (footnotes omitted). Thus, since 1996, in this circuit, assuming that a plaintiff makes out
a prima facie case of unconstitutional patronage dismissal, the defendant must show that the job in
question falls within one of the four McCloud categories.
In this case, the district court did not address whether a patronage dismissal of a deputy
county clerk is a constitutional violation. It chose, instead, to rely on qualified immunity in
dismissing the complaint.5 Plaintiffs assert that Defendant failed to rehire them based on their
support of Defendant’s opponent in the election. Viewing the deposition evidence in the light most
favorable to Plaintiffs, there is evidence that Plainiffs supported Defendant’s opponent, that
Defendant was aware of that support, and that Defendant failed to rehire Plainiffs. This evidence
raises a triable question of fact as to whether Defendant engaged in patronage dismissals and
violated Plaintiffs’ constitutional rights.
4
In Branti v. Finkel, 445 U.S. 507, 512 n.6 (1980), the Supreme Court made clear that failure to rehire due to
political affiliation was no different from discharging a worker due to his or her political affiliation. Testimony in the
record indicates that deputy clerks were traditionally reappointed after each election, regardless of whether a new County
Clerk took office. It appears to be undisputed that deputy clerks had a reasonable expectation that they would be
reappointed barring poor job performance, misconduct, or malfeasance.
5
We take this opportunity to remind district courts that they may not assume a constitutional violation or skip
to qualified immunity, even when qualified immunity analysis seems conclusive. Saucier v. Katz, 533 U.S. 194, 201
(2001) (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)).
Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 7
Because Plaintiffs have placed sufficient evidence in the record from which a fact-finder
could infer that Defendant knew that they supported her opponent, the burden shifts to Defendant
to prove that Plaintiffs’ positions fall within one of the four McCloud categories. We decide whether
the deputy county clerk position is a position subject to political patronage as a matter of law.
Mumford v. Basinski, 105 F.3d 264, 271 (6th Cir. 1997) (citing McCloud, 97 F.3d at 1546 and Blair
v. Meade, 76 F.3d 97, 100 n.2 (6th Cir.1996). Unfortunately, Defendant Hollan does not indicate
which McCloud category should apply to deputy county clerks.
The undisputed testimony on the types of jobs Plaintiff deputy county clerks perform reveals
that their jobs are essentially clerical. They either do not have, or do not exercise, the type of
discretion or authority that one would normally associate with a job subject to patronage dismissal
under McCloud. It would, therefore, appear that Plaintiffs’ positions do not fall into any of the
McCloud categories; however, our analysis does not end here.
The so-called “Rice cannon” requires this court to give “some deference” to the legislature’s
determination as to whether a particular job is political. See Rice v. Ohio Dep’t of Transp., 14 F.3d
1133, 1143 (6th Cir. 1994) (quoting Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 246 (1st
Cir. 1986)). Defendant points to three different statutes as evidence of the Kentucky General
Assembly’s understanding of the deputy county clerk position. We address each of the statutes
discussed by Defendant Hollan in turn.
First, Defendant Hollan points to K.R.S. § 62.210, which makes 6
the office of the County
Clerk liable “for the the acts or omissions of deputy county clerks.” In Heggen v. Lee, 284 F.3d
675 (6th Cir. 2002), this court found that K.R.S. § 70.040,7 a statute with almost exactly the same
wording as K.R.S. § 62.210, but which applies to sheriffs, does not convert a deputy sheriff position
into a position subject to patronage dismissal. See Heggen, 284 F.3d at 683. Because we can find
no meaningful difference between the two statutes, adopting our reasoning in Heggen, we find that
the Rice cannon is not implicated by this statute..
Next, Defendant Hollan argues that K.R.S. § 382.990(5), which states that a “County Clerk
who, by [themselves or their deputies], fail[s] to perform any duty enjoined upon them [by any of
several various provisions of the Kentucky Revised Statutes] shall be guilty of8 a violation[,]”
converts the deputy county clerk position into one subject to patronage dismissal. Defendant, in
essence, argues that by virtue of this statute, a County Clerk can be criminally liable for the acts of
his or her subordinates, and that this fact requires her to be able to pick politically compatible
employees. This statute, however, is no more availing than the first, since K.R.S. § 62.210
6
The full text of K.R.S. § 62.210 reads: “The office of County Clerk, rather than the individual holder of the
office, shall be liable for the acts or omissions of deputy county clerks. When a deputy clerk omits to act or acts in such
a way as to render the clerk responsible, and the clerk discharges such responsibility, the deputy clerk shall be liable to
the clerk for all damages and costs which are caused by the deputy's act or omission.” Given that deputy county clerks
can be forced to reimburse the clerk’s office for any acts or omissions, the fact that the clerks office is liable for the
actions of the deputy county clerks is of limited utility in determining whether the position is subject to political
patronage.
7
The full text of K.R.S. § 70.040 reads: “The sheriff shall be liable for the acts or omissions of his deputies;
except that, the office of sheriff, and not the individual holder thereof, shall be liable under this section. When a deputy
sheriff omits to act or acts in such a way as to render his principal responsible, and the latter discharges such
responsibility, the deputy shall be liable to the principal for all damages and costs which are caused by the deputy's act
or omission.”
8
A violation, as defined by K.R.S. § 500.080(17), is: “an offense, other than a traffic infraction, for which a
sentence to a fine only can be imposed.”
Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 8
eliminates any personal criminal liability that could attach to the individual officeholder9 and
because K.R.S. § 62.210 requires deputy county clerks to reimburse the clerks office for any fines
levied on the clerk.
Finally, Defendant Hollan points to K.R.S. § 61.035, which provides that: “Any duty
enjoined by law or by the Rules of Civil Procedure upon a ministerial officer, and any act permitted
to be done by him, may be performed by his lawful deputy.” Although this statute is one of general
application in that it does not specifically mention County Clerks or deputy county clerks, Kentucky
courts have held that it can apply to deputy county clerks in the performance of some duties. See
Hallahan v. Cranfill, 383 S.W.2d 374, 376 (Ky. 1964) (a deputy county clerk can participate in the
public examination of absentee ballot applications by virtue of K.R.S. § 61.035); see also Asher v.
Sizemore, 261 S.W.2d 665, 666 (Ky. 1953) (a deputy county clerk can administer an oath in his or
her own name pursuant to K.R.S. § 61.035). This statute, however, is not a clear enough expression
of the Kentucky General Assembly’s wish to convert the position of deputy county clerk into a
political position covered by one of the McCloud categories. We, therefore, decline to hold that the
Kentucky legislature has determined that the position of a deputy county clerk is a political position
as opposed to a clerical position. Consequently, the Rice cannon is inapplicable.
Because Defendant has not shown that the deputy county clerk position falls under any of
the McCloud categories, and because the Rice cannon is inapplicable, we hold that patronage
dismissals of Kentucky deputy county clerks with routine duties violates the U.S. Constitution.
When the evidence is viewed in the light most favorable to Plaintiffs, questions of material fact exist
as to whether Defendant Hollan violated Plaintiffs’ constitutional rights by terminating them for
political reasons. We now proceed to the second step of our analysis and address whether Defendant
Hollan is entitled to qualified immunity.10
9
K.R.S. § 62.210 does not differentiate between criminal and civil liability. It simply makes the office of the
County Clerk liable for all acts and omissions of deputy clerks. It appears that a violation has no effect other than a
monetary penalty under Kentucky law. K.R.S. § 62.210 also requires deputy clerks to reimburse the office of the County
Clerk for any fines imposed on the office of the County Clerk because of the deputy clerks’ acts or omissions. It would
appear, then, that, under Kentucky law, the exposure of a County Clerk to criminal liability by virtue of the acts of his
or her subordinates is not a large concern.
10
As we recently indicated in Estate of Carter, 408 F.3d at 311 n.2:
Panels of this court occasionally employ a three-step qualified immunity analysis,
as opposed to the two-step analysis set forth here. As two recent opinions indicate,
both the two-step approach and the three-step approach can be said to capture the
holding of Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001).
Compare Dunigan v. Noble, 390 F.3d 486, 491 n. 6 (6th Cir.2004) (two-step
approach), with Sample v. Bailey, 2005 Fed.App. 0209P, 409 F.3d 689, 696 n. 3
(6th Cir.2005) (three-step approach). The third step is “whether the plaintiff offered
sufficient evidence to indicate that what the official allegedly did was objectively
unreasonable in light of the clearly established constitutional rights.” Champion v.
Outlook Nashville, Inc., 380 F.3d 893, 905 (6th Cir.2004) (internal quotation
omitted). In cases subsequent to Saucier the Supreme Court has not formally broken
up the two steps prescribed by Saucier into three steps, see, e.g., Brosseau v.
Haugen, --- U.S. ----, 125 S. Ct. 596, 596, 160 L. Ed. 2d 583 (2004); Groh v.
Ramirez, 540 U.S. 551, 563, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004), but the
three-step approach may in some cases increase the clarity of the proper analysis.
In many factual contexts, however, including this one, the fact that a right is
“clearly established” sufficiently implies that its violation is objectively
unreasonable. Cf. Champion, 380 F.3d at 905.
Like Estate of Carter, this case is one of the many cases where, if the right is clearly established, the conduct at issue
would also be objectively unreasonable. Thus, in order to avoid duplicative analysis, we choose to collapse the second
and third prongs discussed in some of our cases into one prong in this case.
Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 9
C. Qualified Immunity
Defendant Hollan argues that she deserves qualified immunity because the law concerning
patronage dismissals of deputy county clerks was not clearly established, particularly in light of
Cope v. Heltsley, 128 F.3d 452 (6th Cir. 1997). Cope is, at this point, of limited value as precedent.
In Cope, this court assumed that a constitutional violation was present, but granted qualified
immunity on the basis that the law was not clearly established in 1997.11 Id. at 461. In general, it
is of little consequence that this court held that a right was not clearly established at an earlier date.
See Hall v. Tollett, 128 F.3d 418, 429-30 (6th Cir. 1996). A right not clearly established in 1994
(the court was dealing with a failure to renew an appointment that occurred in January of 1994, see
Cope, 128 F.3d at 456), may become clearly established in the intervening time before 2002. Thus,
relying almost exclusively on a case that held that a right was not clearly established many years ago
is not conclusive or persuasive.
Under the doctrine of qualified immunity, “government officials performing discretionary
functions are shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The purpose of the clearly established
prong of the qualified immunity analysis is to insure that the officials were on notice that their
conduct was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“[T]he salient question
that the Court of Appeals ought to have asked is whether the state of the law in 1995 gave
respondents fair warning that their alleged treatment of Hope was unconstitutional.”). Although
notice to the official is critical, qualified immunity is an objective rather than a subjective inquiry.
Cope, 128 F.3d at 458 (“It is important to understand that Mrs. Heltsley's own subjective views on
the legality of her staffing decisions are essentially irrelevant. Whatever she may actually have
thought about the constitutional propriety of what she was doing, the pertinent test is an objective
one, not subjective.” (internal citations and quotation marks omitted)). Rights at issue must be
clearly established, not just in the abstract sense, but in a particularized sense. See Brosseau v.
Hogan, 125 S. Ct. 596, 599 (2004) (finding that “[t]he present case [was] far from the obvious one
where Graham and Garner alone offer a basis for decision,” the court “therefore turn[ed] to ask
whether, at the time of Brosseau's actions, it was clearly established in [a] more particularized sense
that she was violating Haugen's Fourth Amendment right[s].”) (internal quotation marks omitted);
Saucier, 533 U.S. at 202 (“The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.”) (citations omitted); Anderson v. Creighton, 483 U.S. 635, 640 (1987)
(“The contours of the right must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right.”) (citations omitted). The specific act, however, need not have
been held unconstitutional for the right to be clearly established. See Hope v. Pelzer, 536 U.S. 730,
741 (2002) (“[O]fficials can still be on notice that their conduct violates established law even in
novel factual circumstances.”); Anderson, 483 U.S. at 640 (“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.”).
Thus, while it must be clear to the reasonable official that acts would violate the
Constitution, it is irrelevant what the individual official actually believed about the legality of his
or her action. In addition, the specific action of the official need not have been found to have been
unconstitutional in a prior decision to hold that official liable pursuant to § 1983, but the law must
have established with particularity that the conduct complained of violated the Constitution before
the official engaged in the unconstitutional act.
11
Defendant’s reliance on Cope highlights the danger inherent in any court assuming a constitutional violation
in order to decide a case on the basis of qualified immunity due to the absence of clearly established law.
Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 10
In Hall, this court relied on McCloud v. Testa, 97 F.3d 1536, 1557 (6th Cir. 1996)
(establishing four categories to attempt to capture the positions that can fall under the Branti
exception), to hold that the deputy sheriffs’ duties did not fit into the Branti exception. Hall, 128
F.3d at 429-30. We also held that the sheriff deserved qualified immunity due to the absence of a
clearly established rule forbidding the termination of deputy sheriffs for political reasons. See id.
at 429. We so held, because in Coyle v. Gilley, 957 F.2d 1347 (6th Cir. 1992), we had earlier found
that it was not clearly established that deputy sheriffs were protected from patronage dismissals
under the state of the law in 1992. Hall, 128 F.3d at 430. We also determined that after our decision
in Coyle, but before 1994, when the defendant in Hall acted, no further relevant cases had been
decided. Id. We also noted a split in the circuits. Id. With no decision that patronage dismissals
of deputy sheriffs was impermissible between 1992 and 1994, the defendant in Hall was entitled to
qualified immunity. Id. Here, however, Defendant had not only our earlier decision in Cope, which
assumed that the dismissal of deputy clerks was unconstitutional, Defendant also had our decisions
in Hall and in Heggen as well as McCloud.
In Heggen, in January of 2002, we denied qualified immunity to a Kentucky sheriff accused
of engaging in patronage dismissals in light of Hall. Hager, 284 F.3d at 687. We determined that
Hall alone was sufficient to make the constitutional right prohibiting patronage dismissals clearly
established for Kentucky deputy sheriffs. Id.
On March 29, 2002, in Hager v. Pike County Bd. of Educ., 286 F.3d 366, 369 (6th Cir. 2002),
a teacher was demoted and reassigned after she supported a different candidate for school
superintendent. Her duties consisted mainly of “providing direct services to students, and the
remainder administering the [Gifted and Talented Program (GTP)].” She also worked closely with
the former superintendent to “build and improve the GTP by creating and implementing several new
local programs, obtaining additional grants . . . identifying an increased number of eligible students,
. . . [and] conferr[ing] with the State GTP Consultant . . . .” Id. This court determined that a material
question of fact existed as to whether the new superintendent had violated her First Amendment
rights. Id. at 368.
We believe that Hall, Heggen, and McCloud make the law in this circuit with respect to
patronage dismissals of these types of county employees clearly established with the requisite
specificity to satisfy the Supreme Court’s requirement that the law “clearly establish[] in [a] more
particularized sense” that the act was unconstitutional. Brosseau, 125 S. Ct. at 599.
The duties of the deputy sheriffs described in Hall are little different from the duties of the
deputy clerks here. Deputy sheriffs duties were described in Heggen as “including road patrol,
serving arrest warrants and civil papers, taking complaints and ‘working’ auto accidents, . . .
transport[ing] prisoners[,] and providing courtroom security.” Heggen, 284 F.3d at 679. Heggen
described all of these duties as “nonpolicymaking duties.” Id. at 684. Deputy clerks, whose work
is essentially clerical work, also perform nonpolicymaking duties. Although deputy sheriffs and
deputy clerks engage in different tasks, their respective levels of responsibility and the nature of
their jobs are not so different as to cause this court to find that the law with respect to deputy sheriffs
is clearly established, but that the law with respect to deputy clerks is not clearly established. In
addition, Hager’s duties are also best described as nonpolicymaking duties. It is difficult to
understand how a reasonable official could believe that it would be constitutionally permissible to
terminate a clerical employee like a deputy clerk through political patronage, when this court has
held that it is not constitutionally permissible to terminate a deputy sheriff or a teacher and
administrator of a gifted and talented program through political patronage.
Furthermore, were this court to hold that Hall, Heggen, and Hager did not make the law
clearly established for deputy county clerks, we would be ignoring the Supreme Court’s rule that
“officials can still be on notice that their conduct violates established law even in novel factual
Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 11
circumstances.” Hope, 536 U.S. at 741.12 Were this court to require position-specific findings
before it found that the law was clearly established, we would be, in effect, requiring a previous
finding on the constitutionality of patronage dismissals for every government position before
holding that the law was clearly established for that position. Such a finding could lead to the result
that similarly situated county officials could engage in political patronage dismissals at least once
with impunity, unless and until a court ruled on the constitutionality of political patronage for that
particular position. Such a result is not warranted by logic or precedent.
Finally, the memo circulated to new executives by the county attorney that specifically
warned Defendant against patronage dismissals appears to be relevant to the question of notice in
this case. It is, of course, irrelevant what Defendant Hollan believed the state of the law to be;
indeed, the record is silent as to whether she believed that she could constitutionally discharge her
employees for political reasons. The very fact, though, that the county attorney sent her the memo
indicates that she was on notice that patronage dismissals were, in general, prohibited under clearly
established law, even if the memo did not go into detail about whether she as County Clerk could
engage in patronage dismissals. A reasonable county official, having received that memo, would
have been on notice that patronage dismissals were, in general, prohibited.
In sum, by virtue of McCloud, Heggen, and Hager, Defendant had sufficient notice that
patronage dismissals in Kentucky were constitutionally suspect. These cases alone are enough to
find that the rule prohibiting patronage dismissals of deputy county clerks was clearly established.
The memo from the Boyd County Attorney warning new county executives against patronage
dismissals further solidifies our holding that a reasonable official would be on notice that patronage
dismissals would violate the constitutional rights of county employees in most circumstances.
In Cope, Judge Nelson asked: “Would it have been possible, at the end of 1993, for a
reasonable person, newly-elected a Kentucky County Clerk, to believe that the law entitled her to
take political compatibility into account in deciding whom to retain as her deputy clerks? The
answer, we think, is ‘yes.’” Cope, 128 F.3d at 460. In view of the cases subsequent to Cope, the fact
that Cope assumed a constitutional violation, and the county attorney’s memo, the answer, we think,
to that same question, in 2003, was clearly “no.” Thus, the district court erred in granting Defendant
Hollan qualified immunity for claims brought against her in her individual capacity.
D. Official Capacity Claims
A suit against a person in his or her official capacity is a suit against the office and not the
person. Pusey v. City of Youngstown, 11 F.3d 652, 694-95 (6th Cir. 1993). Suits alleging that a city
or municipality is liable for a constitutional tort brought pursuant to § 1983 must also allege that the
violation resulted from the city’s or municipality’s official policy or custom. See id. See also
Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691 (1978). “In appropriate
circumstances, a single act may rise to the level of policy or custom. With regard to policy, a single
act can constitute municipal policy ‘where the decisionmaker possesses final authority to establish
municipal policy with respect to the action ordered.’” Pusey, 11 F.3d at 659 (quoting Pembaur v.
City of Cincinnati, 475 U.S. 469, 481 (1986)).
To maintain a suit against Defendant Hollan in her official capacity, Plaintiffs must show that
the County Clerk had final authority to establish official policy with respect to the hiring of her
deputy clerks. See, e.g., Pembaur, 475 U.S. at 483 n.12. The district court relied on an unpublished
12
While we are mindful that the standard at issue is whether a reasonable official would be on notice rather than
would a reasonable lawyer be on notice, because the Supreme Court has indicated that novel factual circumstances can
still be subject to clearly established law, the Supreme Court seems to assume that the reasonable official is capable of
drawing analogies between disparate factual situations.
Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 12
decision of this court, Cope v. Heltsley, No. 98-5253, 1999 WL 232687 (6th Cir. Apr. 16, 1999), and
found that Plaintiffs had not offered any evidence that the County Clerk had the authority to
establish county policy with respect to the hiring of deputy clerks. In their briefs on appeal,
Plaintiffs state that they appeal the district court’s grant of summary judgment to Defendant Hollan
in her official capacity, but they point to no evidence that the County Clerk had the authority to
establish county policy with respect to the hiring of deputy clerks, nor do they direct us to any law,
statutory or otherwise, giving that power to the elected County Clerk. After reviewing the record,
we can find no evidence or law that would establish that Hollan, as County Clerk, had the power to
adopt a policy of refusing to rehire deputy clerks for political or patronage reasons. For these
reasons, we find no basis to reverse the District court’s grant of summary judgment in favor of
Defendant for claims brought against her in her official capacity.
E. Plaintiff Butler’s Claims
Finally, we address the claims of Plaintiff Lynn Butler. Plaintiff Lynn Butler was the former
Boyd County Clerk, and, therefore, the holder of a political position. Because hers was a political
position, she had no expectation of being retained by Defendant Hollan, who was elected to replace
her. It is irrelevant that she had been a deputy clerk when she was appointed to the position of
County Clerk after the death of the previous clerk. It is also irrelevant that she did not run13for office
against Defendant Hollan. Thus, the district court did not err in dismissing her claims.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to
Defendant Hollan with respect to the claims of Plaintiff Lynn Butler, AFFIRM the district court’s
judgment with respect to its grant of summary judgment in favor of Defendant Hollan in her official
capacity as Boyd County, Kentucky, County Clerk, but we REVERSE the district court with
respect to its grant of summary judgment on the basis of qualified immunity to Defendant Hollan
in her individual capacity for the claims made by the deputy county clerk plaintiffs. We REMAND
those claims to the district court for further proceedings not inconsistent with this opinion.
13
Further, although Plaintiff Butler joined the deputy clerk Plaintiffs’ appeal, Plaintiffs’ briefs to this court did
not present any argument on behalf of Butler. Thus, we alternatively hold that Butler waived her arguments on appeal.
Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005) (“[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.”). See also Radvansky v. City of
Olmsted Falls, 395 F.3d 291, 311 (6th Cir. 2005) (“[Plaintiff’s] failure to raise an argument in his appellate brief
constitutes a waiver of the argument on appeal.”).