McCloud v. Testa

• Decision Date: 09 August 2000
• Docket Number: No. 99-3551,99-3551
• Citation: 227 F.3d 424
• Parties: (6th Cir. 2000) Bradley L. McCloud, et al., Plaintiffs, C. Calvin Skaates; Terrence B. Cohen; Gloria Jean Morgan; Vernon E. Hysell, Plaintiffs-Appellees, v. Joseph W. Testa,Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 424

227 F.3d 424 (6th Cir. 2000)

Bradley L. McCloud, et al., Plaintiffs, C. Calvin Skaates; Terrence B. Cohen; Gloria Jean Morgan; Vernon E. Hysell, Plaintiffs-Appellees, v. Joseph W. Testa,Defendant-Appellant.

No. 99-3551.

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: August 9, 2000

Decided and Filed: September 8, 2000

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 92-00658--John D. Holschuh, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Louis A. Jacobs, John S. Marshall, Columbus, Ohio, for Appellees.

Patrick E. Sheeran, Douglas K. Browell, PROSECUTING ATTORNEY'S OFFICE FOR THE COUNTY OF FRANKLIN, Columbus, Ohio, for Appellant.

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

OPINION

BOGGS, Circuit Judge.

This is the second interlocutory appeal of the district court's denial of Defendant-Appellant Joseph W. Testa's motion for summary judgment on grounds of qualified immunity in this § 1983 suit for patronage dismissal. The district court's denial of summary judgment keeps the case alive with respect to four of the original nine plaintiffs.

This court earlier held in McCloud v. Testa, 97 F.3d 1536, 1561 (6th Cir. 1996), that Testa was entitled to qualified immunity with respect to one plaintiff, Terry L. Tilson, and remanded for further fact-finding with respect to the remaining eight. The district court did so, and then granted summary judgment to Testa, based on qualified immunity, with respect to plaintiffs McCloud, DeVore, Huber, and Giammarco. It also dismissed Franklin County, Ohio and the Franklin County Board of Commissioners as defendants. But it rejected Testa's claim of qualified immunity, and denied his motion for summary judgment, with respect to Plaintiffs-Appellees C. Calvin Skaates, Terrence B. Cohen, Gloria Jean Morgan, and Vernon E. Hysell. It is this latter denial that is the subject of this interlocutory appeal.

We have jurisdiction to hear this appeal under 28 U.S.C. § 1291 as interpreted by the Supreme Court in Mitchell v. Forsyth, 472 U.S. 511 (1985), and as specifically applied by this court to the situation presented by this case in its previous opinion's extensive discussion of the jurisdictional issues. See McCloud v. Testa, 97 F.3d at 1544-46. We affirm the judgment of the district court and remand for a trial on the merits.

I

The factual background of this case was set out fully in this court's 1996 opinion. What follows is a very brief summary of the relevant parts of what was known at that time. Additional facts since developed in the district court are then recited.

Testa became Franklin County, Ohio Auditor in May 1992 when his predecessor, Palmer McNeal, resigned after pleading guilty to abuse of trust. In a housecleaning move, Testa fired sixteen former underlings of McNeal's because of their connections with their former chief. Nine of them sued Testa in the original case.

The four remaining plaintiffs' positions were:

Skaates: Personal Property Tax Administrator; distributed, collected, and audited property tax returns.

Cohen: Budget and Settlement Division Administrator; audited the county's political subdivisions.

Morgan: Estate Tax Administrator.

Hysell: Estate Tax Division liaison to townships ("township liaison"); also responsible for inventorying safe deposit boxes.

Testa fired each of them because each had a "confidential and 'fiduciary' relation with McNeal." Id. at 1540-41. He transferred the functions that had been performed by Cohen and Hysell to other office employees.

In remanding the case to the district court for further development of the record concerning the nature of plaintiffs' positions, this court wrote "that qualified immunity may become available to Testa with respect to any of these positions as the facts are crystallized or the relevant state/county law is developed before the district court . . . ." Id. at 1562. This would hinge on whether the four positions still at issue in this appeal come under any of the four categories of positions delineated by this court as falling within the "Branti exception" to the First Amendment right to be free from patronage dismissal. See Branti v. Finkel, 445 U.S. 507, 518 (1980).

With respect to Hysell in particular, we noted that "the district court will need to sort out on remand: (1) whether Hysell's function as a township liaison fell into the Branti exception [we noted that it "may fall into category three"]; and, (2) if so, whether Testa exceeded the scope of his protection under Branti by terminating Hysell completely rather than simply terminating his functions as township liaison." McCloud, 97 F.3d at 1561.

As for the positions of Skaates, Cohen, and Morgan, we held that the record was insufficient, at that point, to determine into which, if any, of the excepted categories they might fall. Id. at 1560.

On remand, the district court held:

that while the facts developed at trial may lead to a contrary result, on the present record the law was clearly established in May 1992 that party affiliation was not an appropriate requirement for the effective performance of the duties of the jobs held by plaintiffs C. Colvin Skaates, Terrence B. Cohen, and Gloria Jean Morgan. . . . [and] that political affiliation is not an appropriate requirement for the effective performance of Vernon E. Hysell's duties as township liaison. He has offered evidence which, if credited by the jury, would establish that most of his time during the period January 1 to May 26, 1992 was spent inventorying lock boxes, a job for which political affiliation is not an appropriate requirement.

The court did find that the position of township liaison, per se, falls within the Branti exception. But it held that Hysell could not be dismissed by Testa for political reasons if his liaison functions were not his primary duties:

Under these circumstances, Hysell is entitled to an opportunity to prove at trial that his duties inventorying lock boxes for the Estate Tax Division predominated and that Testa violated his First Amendment right to political affiliation by firing him from his 30-hour-a-week job inventorying lock boxes when he had available the option of stripping Hysell of his duties as Township Liaison and continuing his part-time employment inventorying lock boxes.

II

In our earlier hearing of this case, we discussed at length the applicable standards of review. "We review the denial of summary judgment on grounds of qualified immunity de novo because application of this doctrine is a question of law." McCloud v. Testa, 97 F.3d at 1541 (citing Mumford v. Zieba, 4 F.3d 429, 432 (6th Cir. 1993)).

Three kinds of tie-breaking rules were then explained. "First, when the law is unclear, public officials performing discretionary functions are entitled to qualified immunity in their individual capacities. . . . in political patronage cases [the Branti exception] is to be construed broadly, so as presumptively to encompass positions placed by the legislature outside of the 'merit' civil service. . . . Second, the burden of proof in qualified immunity cases in on the plaintiffs. . . . Third, the government's proffered justifications for patronage practices must satisfy strict scrutiny. . . . [I.e.,] conditioning the retention of public employment on the employee's support of the in-party . . . must further some vital government end by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained must outweigh the loss of constitutionally protected rights." Id. at 1542.

A. The Four Positions

Testa argues that the positions of Skaates, Cohen, and Morgan are probably category two positions, but that they have some characteristics that might more appropriately place them in category three, namely, they acted as "confidential advisors" to, and/or controllers of the lines of communication to, category one and or two position-holders. See Brief for Appellant at 60. Hysell's position, in Testa's view, is probably a category three position, but could be placed in category two by virtue of the portion of the Auditor's (category one) discretionary authority delegated to him. See ibid.

This court defined category two positions as those to which discretionary authority normally granted to category one position-holders (i.e., "authority with respect to the enforcement of [county] law or the carrying out of some other policy of political concern") has been delegated, or which hold such authority in their own right in lieu of category one. Category three position-holders are confidential advisors who advise category one and/or two position-holders "on how to exercise their statutory or delegated policymaking authority, or [are] other confidential employees who control the lines of communications to category one positions, category two positions, or confidential advisors." McCloud v. Testa, 97 F.3d at 1557.

On remand, the district discussed extensively the positions of Skaates, Cohen, and Morgan in the light of this court's instructions on the Branti exception. In reviewing the denial of Testa's motion for summary judgment on grounds of qualified immunity, we view the facts favorably to the plaintiff, and as not in dispute, as must the moving defendant also in order for the judgment to be reviewable. See Johnson v. Jones, 515 U.S. 304, 313-17 (1995).

1. Skaates

The court agreed with Skaates, on the record thus far developed, that Skaates's position was that of a mid-level manager with little or no policymaking or confidential aspects. He supervised nine or ten employees, but did not hire or fire them, was not responsible for their raises or granting leaves, and though he conducted performance evaluations of them, these were reviewed with the employees by his boss (the Auditor), not by Skaates. Testa argues that Skaates had discretionary authority in managing his...