Marcum v. McWhorter, 01-5020.

• Decision Date: 19 September 2002
• Docket Number: No. 01-5020.,01-5020.
• Citation: 308 F.3d 635
• Parties: Lewell MARCUM, Plaintiff-Appellant, v. James McWHORTER, as interim Sheriff of Pulaski County, Kentucky, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

308 F.3d 635

Lewell MARCUM, Plaintiff-Appellant, v. James McWHORTER, as interim Sheriff of Pulaski County, Kentucky, Defendant-Appellee.

No. 01-5020.

United States Court of Appeals, Sixth Circuit.

Argued May 2, 2002.

Decided and Filed September 19, 2002.

James T. Gilbert (argued and briefed), Coy, Gilbert & Gilbert, Richmond, KY, for Plaintiff-Appellant.

David Whalin (argued and briefed), Landrum & Shouse, Louisville, KY, for Defendant-Appellee.

Before MARTIN, Chief Circuit Judge; SILER and CLAY, Circuit Judges.

SILER, J., delivered the opinion of the court, in which MARTIN, C. J., joined. CLAY, J. (pp. 643-46), delivered a separate opinion concurring in the judgment.

OPINION

SILER, Circuit Judge.

Plaintiff Lewell Marcum filed this 42 U.S.C. § 1983 action against the late Sam Catron, in his official capacity as Sheriff of Pulaski County, Kentucky ("Catron" or "Sheriff"), alleging that he was fired as a result of his intimate relationship and cohabitation with a married woman in violation of his right of association as guaranteed by the First and Fourteenth Amendments. He appeals the district court's order granting summary judgment in favor of Catron based on its conclusion that his adulterous relationship was not constitutionally protected. For the reasons that follow, we affirm.

Background

The parties agree that the basic facts in this case concerning the relationship between Lewell Marcum and Rena Abbott are not in dispute. Marcum was hired as a Pulaski County deputy sheriff in February 1986. He separated from his wife on May 8, 1997. Prior to the separation, Marcum lived with his wife and their two children in the martial residence, except for two brief periods in 1996. His divorce was not final until March 11, 1999.

During the course of his work as a deputy sheriff, Marcum met Rena Abbott in 1994 or 1995. When the two met, Abbott was married and living with her husband and their children. From the initial meeting until their cohabitation, Marcum and Abbott were just "good friends" whose respective spouses and families were social acquaintances whose association was marked by family outings and get-togethers.

As an informant, Abbott frequently met with Marcum to discuss cases. At some point, at least by June 1996, their relationship had progressed sufficiently to attract the attention of Chief Deputy Swartz, who counseled Marcum about Abbott's visits to his office and the courthouse. The relationship had become the subject of rumors in and around both the sheriff's department and the courthouse. Additionally, Sheriff Catron received numerous complaints concerning Marcum's association with Abbott from employees within his department, as well as persons working at the courthouse and various citizens within the community.

The relationship reached a turning point in September 1997. While on duty on September 4, Marcum informed Abbott that her husband was making passes at her best friend. Abbott asked Marcum to go with her to confront the woman, which he agreed to do. After receiving confirmation of Marcum's information, Abbott moved out of the marital residence and into her brother's cottage where she remained with her children until September 9 or 10. During her stay at the cottage, Abbott discussed with Marcum her inability to rent a place of her own and the possibility of their renting a place together, sharing expenses. There had been no discussion of cohabitation between Marcum and Abbott prior to Abbott's leaving her husband.

The two then rented a townhouse and began living together on September 9 or 10. Marcum testified that they were not contemplating sharing a life together, or anything of that nature when they assumed their cohabitation. Abbott testified that at the time they moved into the townhouse, the arrangement was strictly a roommate type relationship with both paying their share of the costs. Marcum also testified that he and Abbott did not engage in sexual relations until after they moved in together. Abbott's testimony, however, places the date of their first sexual relations on September 5, the day after she left her husband and prior to her cohabitation with Marcum. Noting this inconsistency, but viewing the facts in the light most favorable to Marcum, the district court found that Marcum and Abbott were romantically involved to some degree when they moved in together.

Regardless of their relationship prior to their cohabitation, it is undisputed that Marcum and Abbott were romantically involved during the time they lived together and certainly at the time of Marcum's dismissal. After learning of this living arrangement, Sheriff Catron told Marcum that either he or Abbott would have to move out. Marcum was discharged on September 19, 1997, upon his perceived failure to comply with Catron's directive. The living arrangement between Marcum and Abbott lasted approximately one month.¹ On October 6, Abbott left to reconcile with her husband. The main reason she cited for leaving was that her oldest daughter did not get along with Marcum. She also testified that Marcum "was getting too serious and [she] just wasn't ready for the relationship."

Marcum filed a 42 U.S.C. § 1983 action for wrongful termination against Sheriff Catron, in his individual and official capacity, alleging that he was fired because of his relationship and cohabitation with Abbott in violation of his constitutional rights. The district court dismissed Marcum's First Amendment claims and his freedom of association claim against Catron in his individual capacity on the grounds of qualified immunity. The only claims which survived were Marcum's freedom of association claim against Catron in his official capacity and his pendent state law claims. The court reserved judgment regarding the freedom of association claim. After extending Marcum time in which to develop the facts about the relationship, the district court concluded that Marcum's extramarital relationship was not entitled to constitutional protection. Accordingly, the court granted summary judgment against Marcum because he failed to prove an infringement of a constitutionally protected right.

Standard of Review

We review the district court's summary judgment decision de novo. See Watkins v. Battle Creek, 273 F.3d 682, 685 (6th Cir.2001). Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Thus, summary judgment is appropriate if a party who has the burden of proof at trial fails to make a showing sufficient to establish the existence of an element that is essential to that party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Discussion

Marcum maintains that his exclusive, romantic and sexually intimate relationship and cohabitation with a married woman is entitled to protection under the constitutional right of association and, as a result, the Sheriff could not legally fire him for such behavior. He argues that the district court erroneously dismissed his claim by categorically denying constitutional protection based on its labeling his relationship "adulterous," offending the spirit of the Constitution and ignoring the factors and analysis set forth by the United States Supreme Court.

The two seminal cases defining the right of intimate association that this court must look to for guidance are Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), and Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987). Roberts explained that the constitutionally protected "freedom of association" has been recognized in the case law in two distinct forms. First, the Supreme Court has identified "a right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion." Roberts, 468 U.S. at 618, 104 S.Ct. 3244. Next, the Court has recognized a certain right of intimate association reasoning that "choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty." Id. at 617-18, 104 S.Ct. 3244. The personal relationship at issue in this case does not involve expressive activity. Rather, this case involves an alleged intrusion by the state into Marcum's intimate human relationship in violation of his right of intimate association.

The Court in Roberts expressed that in order to secure individual liberty, it "must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State." Id. at 618, 104 S.Ct. 3244 (citations omitted). Without precisely defining every consideration underlying this type of constitutional protection, the Court noted that "certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs." Id. at 618-19, 104 S.Ct. 3244. (citations omitted). The personal affiliations that exemplify the considerations that warrant constitutional protection and suggest limitations on the relationships that might be entitled to constitutional shelter "are those that attend the creation and sustenance of a family," which "are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and...