790 F.3d 669 (6th Cir. 2015), 14-1511, Moody v. Michigan Gaming Control Bd.

Docket Nº:14-1511
Citation:790 F.3d 669
Opinion Judge:BOGGS, Circuit Judge.
Party Name:JOHN MOODY; DONALD HARMON; RICK RAY; WALLY MCILLMURRAY, Plaintiffs-Appellants, v. MICHIGAN GAMING CONTROL BOARD; RICHARD KALM; GARY POST; DARYL PARKER; RICHARD GARRISON; BILLY LEE WILLIAMS; JOHN LESSNAU; AL ERNST; MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Criminal Division, Defendants-Appellees
Attorney:Hugh M. Davis, CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit, Michigan, for Appellants. Jason A. Geissler, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees. Hugh M. Davis, CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit, Michigan, for Appellants. Jason A. Geissl...
Judge Panel:Before: KEITH, MERRITT, and BOGGS, Circuit Judges.
Case Date:June 16, 2015
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 669

790 F.3d 669 (6th Cir. 2015)

JOHN MOODY; DONALD HARMON; RICK RAY; WALLY MCILLMURRAY, Plaintiffs-Appellants,

v.

MICHIGAN GAMING CONTROL BOARD; RICHARD KALM; GARY POST; DARYL PARKER; RICHARD GARRISON; BILLY LEE WILLIAMS; JOHN LESSNAU; AL ERNST; MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Criminal Division, Defendants-Appellees

No. 14-1511

United States Court of Appeals, Sixth Circuit

June 16, 2015

Argued March 11, 2015.

Page 670

Appeal from the United States District Court for the Eastern District of Michigan at Flint. No. 4:12-cv-13593--Gershwin A. Drain, District Judge.

ARGUED:

Hugh M. Davis, CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit, Michigan, for Appellants.

Jason A. Geissler, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees.

ON BRIEF:

Hugh M. Davis, CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit, Michigan, for Appellants.

Jason A. Geissler, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees.

Before: KEITH, MERRITT, and BOGGS, Circuit Judges.

OPINION

Page 671

BOGGS, Circuit Judge.

The Michigan Gaming Control Board (MGCB)1 regulates harness racing, a form of horse racing, in Michigan. In the course of investigating allegations of illegal race-fixing, Michigan horse-racing stewards asked Plaintiffs-Appellants John Moody, Donald Harmon, Rick Ray, and Wally McIlmurray, Jr. (harness drivers) questions that the harness drivers construed as possibly self-incriminating. Invoking the Fifth Amendment to the Constitution, the harness drivers refused to answer. Because of this refusal, the MGCB suspended the harness drivers' licenses to race and excluded them from horse-racing grounds. The harness drivers, in addition to seeking relief in state court and administrative fora, sued the MGCB and its employees in federal district court. That court granted summary judgment to the MGCB. The harness drivers timely appealed. We affirm the district court's judgment in part, reverse in part, and remand for further proceedings.

I

In 2010, the MGCB received an anonymous tip that certain harness-racing drivers were fixing races in concert with certain known gamblers. On May 19, 2010, Michigan State Police Detective Thomas DeClercq informed the harness drivers' then-attorney that the harness drivers would be arrested, criminally charged, and arraigned following an informal investigative hearing that had earlier been scheduled for May 20. At that hearing, the harness drivers asserted their Fifth Amendment right against self-incrimination and refused to answer questions. The following day,2 the state suspended the

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plaintiffs' 2010 licenses to work in horse racing because they failed " to comply with the conditions precedent for occupational licensing in Michigan as outlined in R431.1035." 3 Rule 431.1035 provides, in part, " [t]hat the applicant [for an occupational license, such as the license to race horses] . . . shall cooperate in every way . . . during the conduct of an investigation . . . ." On May 26, the harness drivers appealed their suspensions administratively. The harness drivers subsequently filed a suit for injunctive relief in Wayne County Circuit Court. The MGCB delayed the administrative appeal pending the state-court ruling.4

On November 30, 2010, the MGCB issued " orders of exclusion" as to each harness driver. The MGCB took the position that it would not lift the exclusion orders unless the plaintiffs answered questions without legal representation. The harness drivers applied for 2011, 2012, and 2013 licenses without success. In response to the harness drivers' letters that sought to appeal " the deni[a]l of 2011 occupational license," the MGCB indicated that the exclusion orders precluded their consideration of the harness drivers' applications. Letter from Alexander Ernst, Horse Racing Manager, to John R. Moody (Nov. 16, 2011) (Ernst Letter).

In August 2012, the harness drivers filed this suit under 42 U.S.C. § 1983, seeking damages, costs, fees, and injunctive and declaratory relief. On November 27, 2013, the district court granted the MGCB's motion for summary judgment and denied the harness drivers' motion for partial summary judgment. The district court held that the Eleventh Amendment barred plaintiffs' claims for money damages against MGCB and its officials. And the district court held that the MGCB was entitled to qualified immunity because the harness drivers failed to identify the violation of a constitutional right.5 The harness drivers timely appealed.6

" On appeal, this court reviews the district court's grant of summary judgment de novo." T-Mobile Cent. LLC v. Charter Twp. of W. Bloomfield, 691 F.3d 794, 798 (6th Cir. 2012). Qualified immunity involves a two-step inquiry. Brown v. Lewis, 779 F.3d 401, 417 (6th Cir. 2015). We must determine whether the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred and whether the violation involved a clearly established constitutional

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right of which a reasonable person would have known. See id. at 411. We may address these steps in either order. Pearson v. Callahan, 555 U.S. 223, 227, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).7

We consider five actions that may have violated the harness drivers' rights: (1) suspension of license because of refusal to self-incriminate without immunity, (2) exclusion from horse racing for same reason, (3) suspension without hearing, (4) exclusion without hearing, and (5) retaliation.

On the self-incrimination claims, we reverse the district court's grant of summary judgment. Based on the applicable law, the facts viewed in the light most favorable to the harness drivers show that the Constitution entitled the harness drivers to refuse to answer potentially self-incriminating questions, unless the state immunized them from prosecution. To punish the drivers violated the Constitution, and both suspension and exclusion constitute punishment. So the MGCB violated the harness drivers' constitutional rights against self-incrimination. Whether these rights were clearly established at the time remains a question. We remand the case for further proceedings. Cf. Dominque v. Telb, 831 F.2d 673, 677 (6th Cir. 1987).

The harness drivers were due hearings on their suspensions and their exclusions. As we explain below, they were granted due process on their suspensions. We affirm the judgment of the district court on the due-process claim concerning suspensions. The harness drivers were not granted due process on their exclusions. But, for reasons explained below, the absence of that process may have resulted from the harness drivers' own failure to act. We reverse the grant of summary judgment on the due-process claims concerning exclusions and remand for further relevant proceedings.

Finally, the retaliation claims are not properly before us.

II

A

The privilege against self-incrimination applies more broadly than the bare text of the Fifth Amendment might suggest. A few examples demonstrate the privilege's practical reach. The privilege against self-incrimination applies in civil as well as criminal proceedings. Malloy v. Hogan, 378 U.S. 1, 11, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); see also Fieger v. U.S. Att'y Gen., 542 F.3d 1111, 1120 (6th Cir. 2008) (observing that " the fulcrum of the Fifth Amendment privilege is the potential for self-incrimination, not the nature of the instant proceeding" (citing Bialek v. Mukasey, 529 F.3d 1267, 1272 (10th Cir. 2008))). It protects against the use in prosecution of police officers of incriminating statements that they made when given the choice " to forfeit their jobs or to incriminate themselves." Garrity v. New Jersey, 385 U.S. 493, 497, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).

When the questioned persons make the inverse choice under the same sort of duress, i.e., they prefer to forfeit their jobs rather than incriminate themselves, the privilege protects them. Cf. id. at 498; Union Pac. R.R. Co. v. Pub. Serv. Comm'n, 248 U.S. 67, 70, 39 S.Ct. 24, 63 L.Ed. 131 (1918). It is " clearly established . . . that public employers may not coerce their employees to abdicate

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their constitutional rights on pain of dismissal . . . ." Clemente v. Vaslo, 679 F.3d 482, 492 (6th Cir. 2012); see also Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967) (holding that the privilege protects a lawyer who refuses to give testimony that might incriminate himself); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968) (police officer); Uniformed Sanitation Men Ass'n v. Comm'r of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968) (public sanitation employees); Slochower v. Bd. of Educ., 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956) (public-school teacher). These cases " stan[d] for the proposition that a governmental body may not require an employee to waive his privilege against self-incrimination as a condition to keeping his job . . . even [when] no criminal proceedings were ever instituted against" an employee who was later successful in constitutional claims. Lingler v. Fechko, 312 F.3d 237, 239 (6th Cir. 2002) (citations omitted).

Nor does the privilege protect only state employees. It protects a contractor, such as an architect, against the cancellation of state contracts and disqualification from receiving subsequent contracts. Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). It protects from dismissal from his position a political-party officer in the same situation. Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977).8

Here, the MGCB did not offer the harness drivers--state licensees--immunity before the hearing on May 20, 2010. So the harness drivers had reason to fear that, had they responded to questions during the 2010 hearing with incriminating answers, prosecutors would use those...

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