Russillo v. Scarborough

• Decision Date: 18 June 1991
• Docket Number: No. 90-2018,90-2018
• Parties: Frederick M. RUSSILLO, Plaintiff-Appellant, v. The Honorable Tony SCARBOROUGH, Chief Justice of the New Mexico Supreme Court; Robert J. Lovato, Court Administrator; Tommy E. Jewell, Presiding Judge of the Metropolitan Court of Bernalillo County, Defendants-Appellees, and The Supreme Court of the State of New Mexico; the Metropolitan Court of Bernalillo County, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1167

935 F.2d 1167

Frederick M. RUSSILLO, Plaintiff-Appellant, v. The Honorable Tony SCARBOROUGH, Chief Justice of the New

Mexico Supreme Court; Robert J. Lovato, Court

Administrator; Tommy E. Jewell, Presiding Judge of the

Metropolitan Court of Bernalillo County, Defendants-Appellees,

and

The Supreme Court of the State of New Mexico; the

Metropolitan Court of Bernalillo County, Defendants.

No. 90-2018.

United States Court of Appeals, Tenth Circuit.

June 18, 1991.

Harry Zimmerman, San Diego, Cal., for plaintiff-appellant.

John B. Pound of Montgomery & Andrews, P.A., Santa Fe, N.M., for defendants-appellees.

Before MOORE and BRORBY, Circuit Judges, and VAN BEBBER, District Judge. ^*

JOHN P. MOORE, Circuit Judge.

Frederick Russillo was terminated as court administrator of a New Mexico Metropolitan Court at the direction of the New Mexico Supreme Court. Mr. Russillo appeals the district court's decision on summary judgment that he was not unconstitutionally deprived of a property or liberty interest, and the New Mexico Supreme Court did not exceed its power of superintending control. Russillo v. Scarborough, 727 F.Supp. 1402 (D.N.M.1989). We agree with the district court on all grounds and affirm.

I.

The judges of the Metropolitan Court of Bernalillo County, New Mexico, ¹ appointed Mr. Russillo in January 1986 to serve as court administrator. In that capacity, he was directly responsible to and subject to discipline by the presiding judge of the Metropolitan Court, Judge Tommy E. Jewell. ²

In January 1988, the New Mexico Supreme Court initiated an investigation of accounting irregularities at the Metropolitan Court. During the investigation, Mr. Russillo was placed on administrative leave, but he was reinstated when the investigation ended.

In April 1988, approximately $29,000 was stolen from the accounting department of the Metropolitan Court. Mr. Russillo submitted a written resignation to Judge Jewell, stating: "While I had felt the security measures we had instituted were adequate to meet our needs, this is apparently not the case." Judge Jewell rejected the tendered resignation, but a few days later terminated Mr. Russillo at the instruction of Chief Justice Tony Scarborough of the New Mexico Supreme Court. In his affidavit, Justice Scarborough stated that while Mr. Russillo was not accused of stealing the money, the incident had occurred because of lax procedures plaguing the Metropolitan Court administrative office and reflected poorly on the state judiciary.

Mr. Russillo filed suit for wrongful termination against Justice Scarborough; the New Mexico Supreme Court; Robert J. Lovato, the Director of the Administrative Office of the Courts; Judge Jewell; and the Metropolitan Court. On summary judgment, the district court dismissed the claims against the courts based on Eleventh Amendment immunity, and rejected Mr. Russillo's breach of contract claim. The district court also dismissed his Sec. 1983 property and liberty interest claims and his challenge to the state supreme court's exercise of superintending control. On appeal, Mr. Russillo disputes the last three rulings.

We review summary judgment decisions de novo, applying the same standards employed by the trial court under Fed.R.Civ.P. 56(c). Summary judgment is appropriate when there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law. We view the record in the light most favorable to the nonmoving party. Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988).

II.

Mr. Russillo claims under Sec. 1983 that defendants deprived him of due process protection for his property interest in his job when they fired him without pre-termination notice or a post-termination hearing. The district court held as a matter of law that Mr. Russillo does not have a constitutionally protected property interest in his job. We agree.

In the employment context, the Supreme Court has defined a property interest as a legitimate expectation in continued employment. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The existence of a property interest is "defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id.

Under New Mexico law, a public employee has a protected property interest only if he has an express or implied right to continued employment. Lovato v. City of Albuquerque, 106 N.M. 287, 289-90, 742 P.2d 499, 501-02 (1987). Mr. Russillo does not dispute the district court's finding that under applicable personnel rules and New Mexico law he was an at-will employee, serving at the pleasure of the Metropolitan Court. Ordinarily, an employee's at-will status forecloses a property interest claim because the employee has no legitimate expectation of future employment. See Bishop v. Wood, 426 U.S. 341, 345-47, 96 S.Ct. 2074, 2077-79, 48 L.Ed.2d 684 (1976).

Mr. Russillo focuses his appeal on the novel claim that he has a property interest in the expectation that he will only be terminated by the Metropolitan Court independently exercising its authority. He contends that expectation was violated because the New Mexico Supreme Court ordered the Metropolitan Court to fire him.

Mr. Russillo's theory redefines the nature of a protected property interest to include the manner of his termination. However, the Supreme Court rejected this approach in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985), stating: " 'Property' cannot be defined by the procedures provided for its deprivation...." Although this statement was made in the context of holding that the scope of a property interest cannot be limited by accompanying procedures, we believe it also supports the converse conclusion that the scope of a property interest cannot be expanded by reference to procedures. We have followed the Supreme Court's dictate in this circuit, stating for instance that a property interest is defined by substantive rather than procedural restrictions on an employer's discretion to terminate an employee. Campbell v. Mercer, 926 F.2d 990, 993 (10th Cir.1991), citing Asbill v. Housing Auth. of Choctaw Nation, 726 F.2d 1499 (10th Cir.1984). Similarly, we have held that grievance procedures, such as meetings with particular authorities, do not themselves create a property interest in continued employment. Carnes v. Parker, 922 F.2d 1506, 1511 (10th Cir.1991). ³

Any suggestion in New Mexico case law that procedures create a property interest is erroneous. Mr. Russillo relies on Jacobs v. Stratton, 94 N.M. 665, 667, 615 P.2d 982, 984 (1980), which stated without elaboration that "procedures gave [the employee] an entitlement" and cited Roth. See also Graff v. Glennen, 106 N.M. 668, 748 P.2d 511 (1988) (in dicta, repeated language from Jacobs ). However, in an appeal after remand in Jacobs, the New Mexico Court of Appeals acknowledged Loudermill and declined to decide the case based on a property interest claim. Jacobs v. Meister, 108 N.M. 488, 493-94, 775 P.2d 254, 259-60 (N.M.Ct.App.), cert. denied, 108 N.M. 582, 775 P.2d 1299 (1989).

Given the Metropolitan Court's unrestricted authority to terminate Mr. Russillo for any reason, we discern no legitimate expectation of continued employment, whatever Mr. Russillo's expectations about how he would be fired. We agree with the district court's assessment that "provisions that outline who is responsible for employee discipline do not, standing alone, support a claim of a protected property right in future employment." Russillo, 727 F.Supp. at 1410.

III.

Mr. Russillo also asserts under Sec. 1983 that his liberty interest in his good name and reputation was violated when he was discharged without a name-clearing hearing. He was terminated shortly after $29,000 had been stolen from the Metropolitan Court and publicity accompanying the two events implied he was guilty of wrongdoing, Mr. Russillo contends. The following excerpts from an article appearing on April 28, 1988, in the Albuquerque Journal are typical of the publicity:

Metropolitan Court administrator Fred Russillo was fired this week by order of Tony Scarborough, chief justice of the state Supreme Court.

Metro Court Presiding Judge Tommy Jewell said Wednesday that Scarborough told him to ask for Russillo's resignation, or fire him.

....

Scarborough did not tell Jewell why Russillo had to step down, Jewell said. Russillo had been Metro Court administrator since January 1986.

....

About $26,000 in fines and fees paid to Metro Court was stolen from the court's accounting offices last week. Two court employees were fired over the theft, but Jewell said he did not know if Russillo's firing was related to the incident.

In our recent en banc decision, Melton v. City of Oklahoma City, 928 F.2d 920, 927 (10th Cir.1991), we stated that a liberty interest claim exists "[w]hen a public employer takes action to terminate an employee based upon a public statement of unfounded charges of dishonesty or immorality that might seriously damage the employee's standing or associations in the community and foreclose the employee's freedom to take advantage of future employment opportunities...." We held that a city did not violate a police officer's liberty interest when a police department spokesperson accurately told the press that the department was investigating perjury allegations against the officer. Id. at 922, 924. Several controlling factors were: (1) the police department's statements were not false nor were they intended to create false implications, (2) the police department did not "charge" the officer with perjury, and (3) the police department was not the original source of the potentially stigmatizing information. Id. at 928-29.

Here, New Mexico court officials...