Jacqueline Gaines v. Denise Cross

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 26a0057p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

JACQUELINE GAINES,

│

Plaintiff-Appellant, │

> No. 25-3233

│

v. │

│

DENISE CROSS; MONTGOMERY COUNTY COMMON │

PLEAS COURT, │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Southern District of Ohio at Columbus.*

No. 3:24-cv-00187—Edmund A. Sargus, Jr., District Judge.

Argued: December 10, 2025

Decided and Filed: February 27, 2026

Before: BATCHELDER, GILMAN, and LARSEN, Circuit Judges.

_________________

COUNSEL

ARGUED: Marc D. Mezibov, Cincinnati, Ohio, for Appellant. Cooper D. Bowen,

MONTGOMERY JONSON LLP, Cincinnati, Ohio, for Appellees. ON BRIEF: Marc D.

Mezibov, MEZIBOV BUTLER, Cincinnati, Ohio, Emmett E. Robinson, ROBINSON LAW

FIRM LLC, Cleveland, Ohio, for Appellant. Cooper D. Bowen, Linda L. Woeber,

MONTGOMERY JONSON LLP, Cincinnati, Ohio, for Appellees.

*On June 26, 2024, Plaintiff filed her complaint in the United States District Court for the Southern District

of Ohio at Dayton. On November 18, 2024, Hon. Michael J. Newmann recused himself and all judges in the Dayton

seat of court and referred the matter for random reassignment to another district seat.

No. 25-3233 Gaines v. Cross, et al. Page 2

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OPINION

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ALICE M. BATCHELDER, Circuit Judge. Political candidates, including judicial

candidates, have broad free-speech rights to “speak in support of their campaigns.” Williams-

Yulee v. The Florida Bar, 575 U.S. 433, 457 (2015). But that right does not divest a duly elected

government of its power to control certain speech by its confidential and policymaking

employees. Jacqueline Gaines, then a domestic-relations court magistrate, contends that her

court and its administrative judge, Denise Cross, abridged Gaines’s freedom of speech when

Cross terminated her employment over her campaign speech that cast the court’s operations and

Gaines’s fellow magistrate in a negative light. Because Gaines held a confidential or

policymaking position within the domestic-relations court and spoke on political or policy-

related matters in a manner that undermined the trust and confidence that Cross had in Gaines’s

continued service, her termination did not violate the First Amendment. The district court’s

dismissal of her claim under 42 U.S.C. § 1983 is therefore AFFIRMED.

I.

Denise Cross served as the administrative judge for the Montgomery County, Ohio, Court

of Common Pleas, Domestic Relations Division (DR Court). In 2011, Jacqueline Gaines was

appointed to serve as a magistrate for the DR Court. Her duties included presiding over legal

hearings, deciding cases, and mediating settlements, as well as performing related administrative

functions. While serving as a magistrate, Gaines declared her candidacy in the 2024 Republican

primary for an upcoming vacancy on the DR Court bench. Jennifer Petrella, who served

alongside Gaines as a DR Court magistrate and court administrator, also declared her candidacy.

Gaines disseminated campaign literature advocating for her election over Petrella’s. In

one mailer, Gaines urged voters to compare her and Petrella’s weekly schedules: while Gaines

allegedly carried a robust docket of complex domestic-relations cases, Petrella ostensibly heard

“a handful of cases” for one half-day per week. According to Gaines’s mailer, the vast majority

of Petrella’s working hours were spent on administrative matters, including submitting grant

No. 25-3233 Gaines v. Cross, et al. Page 3

applications, planning human-resources events and parties, and attending meetings. In another

mailer, Gaines promoted herself as a “wife, mother, full-time magistrate, and family law scholar”

before urging voters to question whether “someone without children of her own ([Gaines’s]

opponent)” ought to “interview [voters’] children and decide their custody and visitation

arrangements.”

These advertisements offended Cross. According to Gaines, Cross thought Gaines had

“violated the integrity of the [c]ourt” and had cast it in a “negative light.” When Gaines returned

to work after losing the Republican primary, Cross confronted her and terminated her

employment as a magistrate. Cross subsequently retired.

Gaines sued Cross, in both her official and personal capacities, and the DR Court,

bringing a single claim under 42 U.S.C. § 1983 for violation of Gaines’s free-speech rights

enshrined in the First Amendment to the United States Constitution. The district court dismissed

Gaines’s suit for failure to state a claim. Gaines v. Cross, 771 F. Supp. 3d 982, 998 (S.D. Ohio

2025). In particular, the district court held that (1) the DR Court was “not a legally cognizable

entity” subject to suit, (2) sovereign immunity barred Gaines’s claim for money damages against

Cross in her official capacity, and (3) Gaines failed to state a plausible freedom-of-speech claim

against Cross. Gaines brings this timely appeal.

II.

“We review de novo a district court’s decision to grant a motion to dismiss for failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6).” Cooperrider v. Woods, 127 F.4th

1019, 1027 (6th Cir. 2025) (citation omitted). “To survive a motion to dismiss [pursuant to Rule

12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Id. (alteration in original) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)). “Determining whether a complaint states a facially plausible claim

requires courts to construe the complaint in a light most favorable to the plaintiff, accept all well-

pleaded factual allegations as true, and decide whether there is enough factual content to allow

‘the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.’” Id. (citation omitted).

No. 25-3233 Gaines v. Cross, et al. Page 4

A.

On appeal, Gaines challenges only the district court’s holding that she failed to state a

plausible freedom-of-speech claim against Cross. Gaines’s briefing before this Court makes no

mention of the district court’s dismissal of the claims against the DR Court or application of

sovereign immunity to the money-damages claims against Cross in her official capacity.

Because Gaines failed to raise any arguments challenging these two conclusions, we deem those

arguments waived. See United States v. Russell, 26 F.4th 371, 374–75 (6th Cir. 2022).

B.

This Court engages in a “two-part inquiry for determining when the discharge of a public

employee violates the First Amendment.” Rose v. Stephens, 291 F.3d 917, 920 (6th Cir. 2002)

(citing Connick v. Myers, 461 U.S. 138, 149–52 (1983)). The threshold inquiry is a question of

law: “whether the employee’s speech may be fairly characterized as constituting speech on a

matter of public concern.” Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1186 (6th Cir. 1995)

(citation modified). If the answer is no, then “the court’s inquiry ends” since the speech is not

protected and we need not scrutinize the reason for the discharge. Id. “If the speech relates to a

matter of public concern, then the court employs the balancing test outlined in Pickering v.

Board of Education, 391 U.S. 563 (1968), to determine if the employee’s free speech interests

outweigh the efficiency interests of the government as an employer.” Rose, 291 F.3d at 920

(citation modified).

But in some circumstances, Pickering’s usually “fact-intensive” inquiry is unnecessary:

“where an employee is in a policymaking or confidential position and is terminated for speech

related to his political or policy views, the Pickering balance favors the government as a matter

of law.” Id. at 922–23. Although the Supreme Court has generally restricted the government

from “condition[ing] public employment on a basis that infringes the employee’s constitutionally

protected interests in freedom of expression,” the government retains a significant interest in

operating an efficient workplace. Id. at 920 (quoting Connick, 461 U.S. at 142). Likewise, “the

government has a separate but related interest in securing employees who will loyally implement

the policies of its democratically elected officials.” Id. at 920–21 (citing Elrod v. Burns, 427

No. 25-3233 Gaines v. Cross, et al. Page 5

U.S. 347, 367 (1976)). “[T]he government’s interest in appointing politically loyal employees to

certain positions converges with its interest in operating an efficient workplace when dealing

with policymaking employees because loyalty by those employees is an essential requirement for

the efficient functioning of the workplace.” Id. at 923. Drawing from the Supreme Court’s

holdings in Connick, Elrod, and Branti v. Finkel, 445 U.S. 507, 517–18 (1980), we held in Rose

that these interests justify “the discharge of a policymaking or confidential employee on the basis

of speech . . . related to politics or policy.” Rose, 291 F.3d at 921, 923–924, 923 n.2.

Since Cross maintained these related interests in the efficient operation of her court and

in the loyal implementation of her policies, she could have rightly dismissed a DR Court

employee if (1) the employee “occupied a policymaking or confidential position” and (2) the

employee’s at-issue speech “addressed matters related to politics or policy.” Id. at 924 (citation

modified). The district court thoroughly reasoned that Gaines held a confidential, policymaking

position as a DR Court magistrate, and since Gaines makes no argument to the contrary on

appeal, we will not disturb the district court’s conclusion on this point. See Russell, 26 F.4th at

374–75.

Turning to whether the two campaign advertisements address matters related to politics

or policy, we hold that they do. At the crux of this question is whether “the content of the

employee’s speech directly implicates the loyalty requirements of the position,” which would

necessarily “adversely affect a central aspect of the working relationship.” Rose, 291 F.3d at

923. Two messages from Gaines’s mailers clearly fit this bill. One mailer unambiguously

implies that Petrella’s court-appointed responsibilities, such as planning “office parties” and

“human resources events,” are trivial. Not only is this message clear from the text, but Gaines

explicitly wanted the public to draw this conclusion: this mailer implores voters to “Compare and

Contrast . . . Gaines’ [sic] Weekly Schedule VS Opponent Weekly Schedule.” Gaines contends

that she merely sought to highlight her qualifications for office relative to those of her opponent.

But by emphasizing their respective work schedules and casting her opponent’s court-appointed

duties as trivial, she necessarily undermined the policy decisions of the DR Court’s

administrative judge: Cross. That also undermined the trust and working relationship between

Gaines and Cross. “[T]he First Amendment does not require a public office to be run as a

No. 25-3233 Gaines v. Cross, et al. Page 6

roundtable for employee complaints over internal office affairs.” Latham v. Off. of Atty. Gen. of

State of Ohio, 395 F.3d 261, 266 (6th Cir. 2005) (quoting Connick, 461 U.S. at 149). It certainly

does not require the roundtable to be broadcast to the public.

The other mailer explicitly calls for voters to question whether Petrella, as “someone

without children of her own” is qualified to “interview [voters’] children and decide their

custody and visitation arrangements.” Again, the thrust is clear: Petrella’s alleged childlessness

makes her less competent to make decisions for the DR Court. And again, Gaines counters by

claiming that this is merely a comparison of two candidates for office. But this comparison is

not so neatly cabined to Gaines’s and Petrella’s desired position of judge. By implicating

Petrella’s competency to render domestic-relations decisions for the court, the mailer necessarily

criticizes Petrella’s competence to do so as a magistrate. And this intrinsically speaks to a DR-

Court policy decision: retaining Petrella’s current appointment.

We similarly dismissed a terminated public employee’s attempts to reframe his speech as

unrelated to political or policy views in Tompos v. City of Taylor, 644 F. App’x 678, 683 (6th

Cir. 2016). Tompos, a fire chief allegedly terminated over his public criticism of budget cuts to

his fire department, “protest[ed] that he ‘did not speak out on budget decisions or budgetary

processes’; ‘his statements to the press and City Council [were] about safety issues affecting

Taylor citizens, . . . not political or policy views.’” Id. (second alteration in original). But we

held that the second Rose inquiry—whether Tompos’s speech addressed politics or policy—was

“easily satisfied” because his speech was “inextricably bound up in the Mayor’s budgetary

policies.” Id. (citation omitted). Likewise, Gaines cannot reframe her speech about a fellow

court-appointed magistrate’s aptitude to preside over domestic-relations matters as merely a

comparison of two candidates. Nor can she use the same justification to paper over her

trivializing of her fellow magistrate’s court-appointed duties. Her campaign speech was

inextricably bound up in the policies of the court over which Cross presided.

We need not decide today whether political-campaign speech is per se related to politics

or policy, but here, that context does not favor Gaines. Since the campaign mailers addressed

matters related to politics or policy, we find no error in the district court’s application of Rose to

Gaines’s termination.

No. 25-3233 Gaines v. Cross, et al. Page 7

C.

Gaines proffers several counterarguments to Rose’s applicability; all are unavailing.

First, Gaines contends that her termination was unlawful because she was never insubordinate.

To reach this conclusion, Gaines asks us to read the “insubordination” language in Rose to

require an employee’s actual disobedience of a superior’s prior directive, such as a refusal to

retract an offending statement or a decision to publish offending speech over a command to the

contrary. See Rose, 291 F.3d at 923. But we rejected this construction of Rose in Latham, 395

F.3d at 266. There we reaffirmed that “it is insubordination for an employee whose position

requires loyalty to speak on job-related issues in a manner contrary to the position of his

employer.” Id. (quoting Rose, 291 F.3d at 923) (emphasis added). An employer does not need

to show an employee’s “act of refusal” or “outright rebellion” to justify terminating that

employee’s employment. Id. (emphasis removed). It is sufficient that Gaines spoke on matters

of DR-Court policy in a manner contrary to Cross’s position.

Second, Gaines maintains that she never expressed disloyalty or contradicted Cross’s

policy choices, so her speech cannot be fairly characterized as insubordination. On this point,

Gaines cites, in passing, this Court’s decision in Scarbrough v. Morgan County Board of

Education, 470 F.3d 250, 258–59 (6th Cir. 2006). But we expressly held in that case that the

employee’s “speech and conduct d[id] not implicate either his political position or his

substantive policy views.” Id. at 259. Here, Gaines trivialized the duties assigned by Cross to

Petrella and questioned Petrella’s competence to decide cases on behalf of the DR Court.

Cross’s policy position was inherent in her choice to retain Petrella and delegate certain tasks to

her. Gaines spoke contrarily to those positions and did so publicly, further implicating her

disloyalty. In short, Gaines’s advertisements “clearly relate[] to [DR-Court] policies and . . . fit[]

easily within the scope of the exception.” See Rose, 291 F.3d at 925.

Third, Gaines argues that Rose is inapplicable because she was not speaking in her

capacity as a DR Court magistrate. We rejected this argument in Schwamberger v. Marion

County Board of Elections, 988 F.3d 851, 857 (6th Cir. 2021). Attempting to escape the Rose

presumption, the terminated employee in Schwamberger argued that her “statements were made

as a private citizen ‘exercising her First Amendment rights’” and merely expressed “her own

No. 25-3233 Gaines v. Cross, et al. Page 8

political or policy viewpoints.” Id. But this argument “misse[d] the point because her speech

implicated policy concerns.” Id. “Because she was a policymaking employee, and because her

statements concerned [her employer’s] policies, her speech was unprotected.” Id.; see also

Dixon v. Univ. of Toledo, 702 F.3d 269, 274, 277 (6th Cir. 2012) (upholding the termination of

an employee for expressing her “personal opinion and viewpoint” in an op-ed published in the

employee’s personal capacity). Gaines’s speech, even if not uttered as a magistrate, is likewise

unprotected.

Fourth, Gaines contends the district court failed to apply Rose with regard to the standard

of review under Federal Rule of Civil Procedure 12(b)(6). Specifically, Gaines takes issue with

the district court’s conclusions that (1) her speech “could be characterized as insubordination,”

(2) her policy statements “would make it more difficult for Judge Cross to trust Ms. Gaines to

loyally implement her polices as an elected official,” and (3) “[a] listener might also understand

from her campaign literature that Ms. Gaines was being critical of her employer, Judge Cross, for

how she managed the [DR Court].” See Gaines, 771 F. Supp. 3d at 996–97. According to

Gaines, terms like “could,” “would,” and “might” are incongruent with Rule 12(b)(6). But over-

parsing the decision below will not create an issue of fact where none exists. The district court’s

use of hypothetical diction merely paraphrases the relevant authority. See, e.g., Latham, 395

F.3d at 266 (noting that the plaintiff’s speech “could have made it difficult for her employer to

trust her”); id. (holding that Rose “focuse[s] on how the speech would affect the employer’s

ability to maintain a working relationship with his or her employees”); Scarbrough, 470 F.3d at

258 (finding that the plaintiff’s speech “would unfairly be characterized as insubordination”);

Simasko v. Cnty. of St. Clair, 417 F.3d 559, 563, 565 (6th Cir. 2005) (holding that the plaintiff’s

actions “could have caused” his employer to question his loyalty and were a valid reason for

termination).

Fifth, Gaines argues that her status as a judicial candidate grants her essentially carte

blanche authority to speak in support of her campaign so long as she does not violate the Ohio

Code of Judicial Conduct. But she provides no authority for this contention, and we are not

convinced that Rose is inapplicable merely because Gaines was running for office. We

acknowledge that Gaines had “a First Amendment right to speak in support of [her] campaign.”

No. 25-3233 Gaines v. Cross, et al. Page 9

Williams-Yulee, 575 U.S. at 457; see also Republican Party of Minn. v. White, 536 U.S. 765, 788

(2002). But as Gaines acknowledges, neither case addresses the free-speech rights of public

employees. And in Williams-Yulee, the Court upheld a restriction on judicial candidate

activities. 575 U.S. at 457. The government’s interest in the implementation of its policies is not

rendered moot merely because one of its confidential or policymaking employees declares her

candidacy for office. The rule that Gaines requests would create a vicious cycle undermining the

very interest Gaines purports to champion. Unconstrained by the principles stated in Rose, a

successful employee-candidate would have vast freedom to speak in support of her campaign,

including to the detriment of her government employer. But upon taking office, she might find

herself impotent to implement her mandate as soon as her confidential or policymaking

employees declared their own candidacies for office. Far from protecting the freedom of speech

in elections, this rule would render that speech pointless.

Nor is Gaines’s supposed compliance with the Ohio Code of Judicial Conduct of any

significance. Rose applies even when a public employee’s speech is lawful. And Gaines’s own

speech demonstrates how lawful speech might undermine the efficient operation of the

government and the loyal implementation of its policies. These interests—not whether the

speech violates a professional code—underly our decision in Rose.

Sixth and finally, Gaines asks us to apply strict scrutiny because Cross applied a content-

based restriction on Gaines’s speech. We recognize the usual connection between content-based

restrictions and their review under strict scrutiny. See, e.g., Reed v. Town of Gilbert, 576 U.S.

155, 163 (2015). But the Supreme Court adopted a balancing test for free-speech claims by

public employees speaking on matters of public concern. Pickering, 391 U.S. at 568. And

Elrod, Branti, and Rose explicitly contemplate the termination of public employees’ employment

for content-based—even viewpoint-based—reasons. Because Gaines served in a confidential or

policymaking position, the government need not satisfy strict scrutiny.

III.

For the foregoing reasons, we affirm the judgment of the district court.