Cronovich v. Dunn, Civ. No. 81-70518.

• Decision Date: 11 October 1983
• Docket Number: Civ. No. 81-70518.
• Citation: 573 F. Supp. 1340
• Parties: Lenore CRONOVICH, Plaintiff, v. Richard DUNN, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

573 F. Supp. 1340

Lenore CRONOVICH, Plaintiff, v. Richard DUNN, et al., Defendants.

Civ. No. 81-70518.

United States District Court, E.D. Michigan, S.D.

October 11, 1983.

Susan Winshall of Susan Winshall & Assoc., P.C., Southfield, Mich., for plaintiff.

Joseph A. Sullivan of Bodman, Longley & Dahling, Detroit, Mich., for all defendants except Gilmore.

Theordore Sachs of Marston, Sachs, Nunn, Kates, Kadushin & O'Hare, Detroit, Mich., for defendant Gilmore.

William McIntyre, Jr., Asst. Corp. Counsel for Wayne County, Detroit, Mich., for defendants O'Hair and Colombo.

OPINION^*

COHN, District Judge.

I.

A.

Defendants, with the exception of defendant Rashid, have moved for a certification under 28 U.S.C. § 1292(b) to enable them to take an interlocutory appeal from parts of my order of September 6, 1983 denying a number of motions filed June 28, 1983. In particular defendants desire certification of the order denying:

1. The motion to dismiss plaintiff's Fourth Amended Complaint on the grounds that Title VII's policy making exception, 42 U.S.C. § 2000e(f), applies by implication to bar plaintiff's claim of sex discrimination and retaliation under 42 U.S.C. § 1983 in the failure to appoint plaintiff Acting Friend of the Court and Friend of the Court;¹ and 2. The motion for summary judgment on the grounds of qualified immunity because defendants were qualifiedly immune from liability in the actions they took on June 30, 1980 and January 19, 1981 in deferring and readvertising the open position of Friend of the Court.²

Plaintiff, in turn, has moved for reinstatement of the Title VII claim on the grounds the position of Friend of the Court is not policy making because the Friend of the Court does not serve at the pleasure of the appointing authority.

B.

28 U.S.C. § 1292(b) provides in part:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate determination of the litigation, he shall so state in writing in such order.

Upon certification, the Court of Appeals may in its discretion permit an appeal to be taken. As explained in Shepard's Manual of Federal Practice, 2d Ed., § 8.87:

An order within the scope of 28 U.S.C. § 1292(b) must involve

1) a question of "law",

2) which is "controlling", and

3) on which there is "substantial ground for difference of opinion" and

4) an immediate appeal must "materially advance the ultimate termination of litigation".

Only in exceptional circumstances should a district court certify a question under § 1292(b), Kraus v. Bd. of County Road Commissioners, 364 F.2d 919 (6th Cir.1966); Cardwell v. Chesapeake & Ohio R.R. Co., 504 F.2d 444 (6th Cir.1974); Usaco Coal Co. v. Carbomin Energy, Inc., 550 F.Supp. 19 (W.D.Ky.1982). A question as to the correctness of a ruling alone is not sufficient grounds for certification. United States v. Grand Trunk Western R.R. Co., 95 F.R.D. 463 (W.D.Mich.1981), and granting certification is within the sound discretion of the district court judge. Id. at 471.

II.

While defendants have not moved for certification of my ruling that they are not entitled to absolute judicial immunity, further discussion of this issue is in order. I have found on further review of the cases that there is some confusion over the scope of the immunity granted judges in making personnel appointments. The cases are not as crystal clear as I initially thought. See chart attached as Exhibit A, prepared by the National Judicial College for presentation at the 1983 Annual Meeting of the State Bar Association of Michigan, September 30, 1983.

In Allen v. Burke, 690 F.2d 376 (4th Cir.1982), the court held that attorney fees can be recovered against a judicial official under 42 U.S.C. § 1988 when prospective relief is properly awarded against the official. It appears from the decision that it was intended that a magistrate be personally obligated for the attorney fees rather than limiting her obligation to payment from public funds. On April 25, 1983 the Supreme Court granted certiorari, Pulliam v. Allen, ___ U.S. ___, 103 S.Ct. 3108, 77 L.Ed.2d 1364 (1983). The National Conference of State Trial Judges Task Force on Judicial Immunity has filed a brief amicus curiae. See 22 Judges Journal, No. 3, page 1.

Pulliam arose from Judge Pulliam's practice of incarcerating indigent defendants who were unable to make nominal bail on misdemeanor charges. The Fourth Circuit held the practice unconstitutional, affirmed the injunction issued by the district court and upheld an award of attorney fees under § 1988 against Judge Pulliam. The precise issue on appeal, therefore, is whether judicial immunity covers a member of the judiciary acting in a judicial capacity under 42 U.S.C. § 1988. While that is a different question than the one involved in this case, the grant of certiorari suggests some pause over the certainty of the rule I stated in my earlier opinion on this issue.

Two decisions from the Northern District of Indiana are more to the point. In Blackwell v. Cook, 570 F.Supp. 474 (N.D.Ind. 1983), Chief Judge Sharp held that an employee who alleged she had been fired by a judge for exercising her First Amendment rights in violation of the equal protection and due process clauses of the Fourteenth Amendment could not sue the judge under 42 U.S.C. § 1983 because the judge was absolutely immune, saying:

the plaintiff is closely allied with the exercise of the Circuit Court's discretion in the handling of individual cases. Mrs. Blackwell has dealt with the Circuit Court in its capacity as a judge and has aided it in the performance of judicial acts. As a result her prayer for damages growing out of those acts and relationships has no support in light of the doctrine of judicial immunity under 42 U.S.C. § 1983.

At 479. In his decision in Blackwell, Chief Judge Sharp cites Pruitt v. Kimbrough, 536 F.Supp. 764 (N.D.Ind.1982), which held that a probation officer could not successfully sue a judge qua employer for damages under 42 U.S.C. § 1983 in an action for wrongful discharge. In an earlier phase of Pruitt the Court of Appeals for the Seventh Circuit in an unpublished order, Pruitt v. Kimbrough, 665 F.2d 1049 (7th Cir.1981), said:

the judges argue that because the granting of probation is a judicial act normally performed by judges and cloaked with immunity, the appointment of personnel to assist them in carrying out this function is also a judicial act, and must be similarly protected.

We agree.

. . . . .

we find that the relationship, and the judges' acts of appointing, supervising, and discharging probation officers are intimately related to the judicial process .... As Pruitt's ultimate supervisors, the judges were functioning in a judicial capacity. These judicial acts are immune from damages liability.

Order of September 10, 1981 at 5.

Finally I observe that under the authority of Forsyth v. Kleindienst, 700 F.2d 104 (3rd Cir.1983), and McSurely v. McClellan, 697 F.2d 309 (D.C.Cir.1982), my denial of defendants' motion to dismiss on the grounds of absolute immunity is appealable as of right. This broad interpretation of what is a final order, of course, may not be recognized by the Sixth Circuit.

III.

As to the question of qualified immunity, it relates to only one of plaintiff's three claims and therefore any final determination on this issue in defendants' favor would not dispose of this case. See 2 Fed. Proc., L.Ed. § 3:362 at 457. Certainly the right to be free of retaliation and sex discrimination is clear; an ambiguous constitutional right is not involved in this case. While not determinative, the Equal Employment Opportunity Commission determination of January 26, 1981³ and the comments in response by defendants (see Comments on Invitation to Participate In Settlement Discussions Re: Charge No. XXX-XX-XXXX attached to the affidavit of defendant Dunn, filed February 19, 1981,⁴ in opposition to plaintiff's motion for a temporary restraining order) makes clear that taken together the May 1980 solicitation of candidates for the open position of Friend of the Court, subsequent deferral of consideration and then readvertising, constituted a rejection of plaintiff's application.

Plaintiff's First Set of Interrogatories to the individual defendants emphasizes the uncertain nature of the factual record at this time. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1983), presumes a clear factual record on which to base a decision on a summary judgment motion brought on grounds of qualified immunity. The nature of each defendant's voting record with regard to plaintiff's application is critical. See Bogart v. Unified School District, 432 F.Supp. 895 (D.Kan. 1977). Contrary to defendants' assertion, Judge Pratt's decision in Lodico v. United States, 571 F.Supp. 21 (E.D.Mich.1982), does not support certification of the question of qualified immunity at this time; it suggests the exact contrary. Judge Pratt said:

The court must evaluate the alleged acts of each individual defendant and determine whether there remains any genuine issue as to any material fact which precludes granting summary judgment in favor of each defendant.

At 25.

. . . . .

If Konic denied plaintiff a job because of such conduct, his actions violated a clearly established constitutional right and he is accordingly not entitled to immunity from suit. Therefore, to determine whether Konic is entitled to immunity the court must determine whether plaintiff's application was indeed denied because of her political beliefs and activities.

At 27.

As explained in 2 Fed.Proc., L.Ed. § 3:360 at 456:

An appeal under 28 U.S.C.S. § 1292(b) should not be granted where the record does not present a case which is ripe for

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