Caudill v. Hollan

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0472p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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TERESA CAUDILL, et al. (04-6017);

Plaintiffs-Appellants, -

LYNN BUTLER (04-6018),

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Nos. 04-6017/6018

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v. >

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Defendant-Appellee. -

DORIS HOLLAN,

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Appeal from the United States District Court

for the Eastern District of Kentucky at Ashland.

No. 03-00030—Henry R. Wilhoit, Jr., District Judge.

Argued: July 21, 2005

Decided and Filed: December 14, 2005

Before: KENNEDY, CLAY, and GILMAN, Circuit Judges.

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COUNSEL

ARGUED: Michael J. Curtis, CURTIS LEGAL SERVICES, INC., Ashland, Kentucky, for

Appellants. Phillip Bruce Leslie, McBRAYER, McGINNIS, LESLIE & KIRKLAND, Greenup,

Kentucky, for Appellee. ON BRIEF: Michael J. Curtis, CURTIS LEGAL SERVICES, INC.,

Ashland, Kentucky, for Appellants. Phillip Bruce Leslie, McBRAYER, McGINNIS, LESLIE &

KIRKLAND, Greenup, Kentucky, for Appellee.

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OPINION

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KENNEDY, Circuit Judge. Plaintiffs appeal from the district court’s dismissal of their

claims against Defendant Doris Hollan, County Clerk for Boyd County, Kentucky. Plaintiffs allege

that because they supported Defendant’s opponent in her election, Defendant failed to reappoint

them to positions as deputy county clerks in violation of their First Amendment rights of free speech

and free association and in violation of their Fourteenth Amendment rights. Finding that the district

court improperly granted Defendant Hollan qualified immunity with respect to certain Plaintiffs’

claims against Defendant Hollan, we AFFIRM the judgment of the district court in part, and

REVERSE it in part.

1

Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 2

BACKGROUND

Plaintiffs Teresa Caudill, Cheryl Fields, and Patty Conlin are all former Boyd County,

Kentucky, deputy county clerks. All three had served as deputy county clerks for several years, but

they were not reappointed to their positions after Hollan won election in 2002 and took office in

2003. Plaintiff Lynn Butler is the former Boyd County, Kentucky, County Clerk. She was a former

deputy clerk who was appointed to that office after the death of the previously elected clerk. She

never sought election to the office of County Clerk either before or after her appointment. During

the election, Plaintiffs supported Hollan’s opponent.

After winning the primary and the election, Defendant received a memo, dated December

16, 2002, that the county attorney circulated to all newly-elected county executives. The memo

specifically warned new county executives not to use patronage dismissals. Defendant provided

written notice to Plaintiffs of her decision not to rehire them on January 3, 2003.

Plaintiffs filed suit pursuant to 42 U.S.C. § 1983, claiming that they were not rehired (a

constructive discharge) in violation of their First Amendment rights of free speech and free

association, as applied to state actors through the Fourteenth Amendment, because they had

supported Defendant Hollan’s opponent. Defendant filed a motion to dismiss and for summary

judgment. Defendant Hollan denied that she failed to reappoint Plaintiffs for political reasons. She

also argued, in the alternative, that had she engaged in patronage dismissals as Plaintiffs alleged, she

deserved qualified immunity, because the law regarding patronage dismissals of Kentucky deputy

county clerks was not clearly established.

On August 28, 2003, the district court dismissed Plaintiff Butler’s claims against Defendant

Hollan, reasoning that as the former County Clerk, Butler did not have any expectation of continued

employment or of being rehired. The court also dismissed all of Plaintiffs’ claims against Defendant

Hollan in her individual capacity, relying primarily on this court’s decision in Cope v. Heltsley, 128

F.3d 452 (6th Cir. 1997).

The parties conducted discovery on the deputy county clerk Plaintiffs’ remaining claims.

On August 11, 2004, in a second opinion, the district court dismissed the remaining claims against

Defendant Hollan in her official capacity as County Clerk. The court held that Plaintiffs had

presented no evidence that the office of the County Clerk had final authority to establish county

policy with respect to hiring matters. The court held that such a finding would be a necessary

prerequisite to Plaintiffs recovering against Defendant1Hollan in her official capacity. The opinion

also directed that judgment be entered for defendants. Plaintiffs appeal. Their appeals have been

consolidated. Plaintiffs argue that the district court should not have granted summary judgment to

Hollan in either her individual or official capacities.

ANALYSIS

A. Jurisdiction

Although neither party raised the issue, before we address the merits of Plaintiffs’ appeals,

we must determine, sua sponte, whether we have jurisdiction over all aspects of those appeals. Fed.

R. Civ. P. 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the court

1

Plaintiffs originally sued the Boyd County Fiscal Court and several individuals in both their individual and

official capacities: Defendant Hollan (the new Boyd County Clerk), Bill Scott (the Boyd County Judge Executive),

Marvin Meredith (a Boyd County Commissioner), Clarence Jackson (another Boyd County Commissioner), and Carl

Tolliver (also a Boyd County Commissioner). The district court dismissed all claims against every defendant except

Defendant Hollan in its August 28, 2003 order. Plaintiffs do not appeal those dismissals.

Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 3

lacks jurisdiction of the subject matter, the court shall dismiss the action.”). In their notice of

appeal, the deputy clerk Plaintiffs failed to appeal from the judgment. The appeal was taken from

the “Memorandum Opinion and Order entered in this action on August 11, 2004.” In the August

11th order, the district court directed the entry of final judgment in the case. It also disposed of the

deputy clerks’ claims against Defendant Hollan in her official capacity as clerk. In their briefs on

appeal, however, Plaintiff deputy clerks also contest the district court’s August 28, 2003 opinion and

order on their claims against Defendant Hollan in her individual capacity.2 Federal Rule of

Appellate Procedure 3(c)(1)(B) requires that a notice of appeal: “designate the judgment, order, or

part thereof being appealed.” The question that confronts us, then, is whether we have jurisdiction

to hear the appeal of the August 28, 2003 order dealing with individual liability, which is not

mentioned in the notice of appeal.

For the reasons that follow, we conclude that we can reach all relevant aspects of the deputy

clerk Plainiffs’ appeal. It has long been the rule “that an appeal of a final judgment draws into

question all prior non-final rulings and orders.” McLaurin v. Fischer, 768 F.2d 98, 101 (6th Cir.

1985). We hold that the notice of appeal sufficiently complies with Fed. R. App. P. 3 to give us

jurisdiction in that the opinion of August 11, 2004, which plaintiffs do list, ordered the entry of the

final judgment in the case. An appeal referencing an order that directs entry of judgment in a case

is a sufficient equivalent to appealing the judgment itself, even though the judgment is entered as

a separate document. In the alternative, if the notice of appeal was technically deficient, we hold

that such a technical deficiency should not prevent us from reaching the merits of the appeal, nor

does such a technical deficiency divest us of jurisdiction to hear the appeal. To rule otherwise would

be to rely on an overly technical reading of Fed. R. App. P. 3(c). Several decisions support finding

jurisdiction under analogous situations.

In McLaurin, the plaintiff’s notice of appeal referred solely to the district court’s order,

which embodied the jury’s verdict on a federal age discrimination claim. Id. The Plaintiff sought

to challenge, however, earlier dismissals of state law claims and an earlier grant of a directed verdict

motion, in addition to the order specifically mentioned in the notice of appeal. Id. The defendant

argued that because the plaintiff only mentioned the order relevant to the federal age discrimination

claim on appeal, the panel could address only that issue and not the other issues. Id. This court

disagreed with the defendant, holding:

In this case, by appealing from the district court’s final order, Dr. McLaurin

effectively preserved for review all of the district court’s non-final rulings and

orders, including the directed verdict and state law claim rulings. Furthermore, even

assuming that the notice of appeal failed to properly preserve these issues for appeal,

Dr. Fischer has failed to demonstrate any prejudice due to the alleged error;

consequently, any error committed by appellant is harmless.

Id. at 102 (italics added for emphasis).

In Boburka v. Adcock, 979 F.2d 424 (6th Cir. 1993), this court allowed a defendant to appeal

a court’s grant of a directed verdict in favor of the plaintiff despite the fact that his notice of appeal

specified only that the defendant was appealing from the district court’s order denying his post-trial

motions for judgment as a matter of law or for a new trial. Id. at 426. The notice of appeal did not

mention either the final judgment or the directed verdict. Id. This circuit, relying on Peabody Coal

Co. v. Locals 1734, 1508 & 1548, 484 F.2d 78 (6th Cir. 1973), and the clear intent of the defendant,

2

In contrast, in Plaintiff Lynn Butler’s notice of appeal, she appeals from “the Court’s Memorandum Opinion

and Order entered on August 28, 2003; the Court’s Order overruling Plaintiff’s Motion to set aside or vacate the 8/28/03

Order entered on October 6, 2003; and, the Memorandum Opinion and Order entered in this action on August 11, 2004.”

Plaintiff Butler thus appeals from all relevant orders in her notice of appeal.

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found that although “[s]trictly construed, the notice of appeal does not preserve the denial of the

directed verdict issue,” the “notice of appeal adequately preserved for appeal all the issues he raises

before this court.” Id.

In Crawford, et al. v. Roane, et al., 53 F.3d 750 (6th Cir. 1995), plaintiffs filed a notice of

appeal that sought review of the order denying their motion for summary judgment and granting

defendant’s motion for summary judgment. Id. at 752. In their brief, however, the plaintiffs also

“discusse[d] the Trustees’ failure to furnish information and ma[de] clear that the [Plaintiffs] also

s[ought] review of the district court’s denial of their motion for leave to file an amended complaint.”

Id. The court held that, because the brief put the defendants on notice as to what was being

appealed, they suffered no prejudice as a result of the plaintiffs’ failure to specify that they desired

appellate review of the other subjects. Id. at 752-53. Cf. Sanabria v. U.S., 437 U.S. 54, 68 n.21

(1978) (“A mistake in designating the judgment appealed from is not always fatal, so long as the

intent to appeal from a specific ruling can fairly be inferred by probing the notice and the other party

was not misled or prejudiced.”) (citations omitted).

Our decision in United States v. Universal Mgmt. Servs., Inc., 191 F.3d 750, 756 (6th Cir.

1999), is not to the contrary. In Universal, a district court denied summary judgment for the

defendants and granted summary judgment to the U.S. Government. Id. at 754. The district court’s

grant of summary judgment resulted in a permanent injunction prohibiting the defendants from

distributing a medical device they claimed would help alleviate pain. Id. 3The defendants made a

motion to reconsider in which they argued that they deserved a new “trial” due to the malfeasance

of their original counsel and because one of the individual defendants could not be personally

subject to the injunction. Id. at 756. Defendants’ notice of appeal stated only that they appealed

from the district court’s order denying them summary judgment and granting summary judgment

to the United States. Id. In their briefs on appeal, however, the defendants discussed arguments

related to both issues raised in their motion to reconsider. Id. The government responded that

because it was not prejudiced by the lack of notice, the court of appeals should address the

arguments. Id. This court held that it lacked jurisdiction to review the items raised in the motion

to reconsider because the notice of appeal did not specifically indicate that the defendants appealed

from that motion. Id. at 756-67. The court did, in the alternative, address the merits of the two

points and found no errors with respect to either issue. Id. at 757-60.

Universal Management Services stands for a related but different proposition than the other

cases previously discussed. In short, our rule is that we will entertain arguments on all objections

and asserted errors prior to the final disposition of a case if a party indicates in its notice of appeal

that it appeals either the final judgment or the final order in the case. We will not, however, absent

specific mention in the notice of appeal, entertain issues raised in post-judgment motions if the

notice of appeal states only that the appeal is from the final order or the final judgment. This rule

is understandable because most pre-judgment decisions made by a trial court are not appealable until

the entry of final judgment. To the extent that the post-judgment motions relate to issues raised

before judgment, the appellate court will deal with them anyway, as it did in Universal. If the issues

raised only in post-judgment motions were new (in that they were arguments not raised prior to a

final disposition of the case), then considerations of notice might require the party raising the issues

be more specific if it wishes to discuss them on appeal to avoid prejudicing either the trial court or

the other party.

In this case, the deputy clerk Plaintiffs did not specifically mention the judgment in their

notice of appeal. Like in McLaurin and Bobruka, however, they did appeal from the final

3

Our opinion does not make clear what the movants meant by “trial” as the case was apparently dismissed on

summary judgment.

Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 5

memorandum and opinion in the case. Under the logic of our prior cases, then, the notice of appeal

provided by Plaintiffs, here, is sufficient. In addition, in this case, the Memorandum Opinion and

Order of August 11, 2004 indicates that “[a] judgment in favor of the Defendant will be entered

contemporaneously herewith.” The judgment was entered that same day. Thus, in light of the fact

that the August 11th Memorandum Opinion and Order ordered the filing of the judgment, meaning

that the judgment would not have been filed were it not for the court’s order, it would appear that

by appealing this opinion, Plaintiffs intended to appeal the portion of the opinion ordering the entry

of judgment. Such an appeal is tantamount to having appealed the judgment itself.

If the notice of appeal is technically deficient, it is readily apparent that neither this court nor

the Defendant have been prejudiced in any way. Defendant understood that Plaintiffs intended to

appeal the August 23, 2003 order because she addressed those arguments in her brief. She suffered

no prejudice, and because the parties briefed their arguments, neither did this court. Thus, even if

the notice of appeal is technically deficient, because no one is prejudiced by that defect, under our

precedent, we should address the merits of the appeal.

Finally, the Supreme Court has held that if a clerk does not enter judgment on a separate

document in a case, but the parties treat the judgment as if it has become final, a court of appeals

may still treat the judgment as final despite the fact that a separate document entering the judgment

is normally required. Bankers Trust Co. v. Mallis, 435 U.S. 381, 382-84 (1978). While it is true that

the facts of this case are not directly related to Bankers Trust Co., a useful analogy can be drawn.

In Bankers Trust Co., obviously, the party appealing did not reference a final judgment in their

notice of appeal as no separate document existed. The party apparently appealed from the final

order issued by the district court. If the entry of a separate document for a final judgment is

unnecessary to allow an appeal in a case like Bankers Trust Co., it seems that we are already treating

a final court order as synonymous with a separate judgment for the purposes of appeal in some

circumstances. If we were to hold, in this case, that a party that references the final order of a court,

but does not indicate that it also appeals the judgment, does not appeal the judgment, we would be

upholding form for form’s sake, and would not advance justice in this case, or in general.

While the requirements of Fed. R. App. P. 3(c)(1) are jurisdictional, Torres v. Oakland

Scavenger Co. et al., 487 U.S. 312, 317 (1988); United States v. Universal Mgmt. Servs., Inc., 191

F.3d 750, 756 (6th Cir. 1999), our precedent, Supreme Court Precedent and Fed. R. App. P. 3(c)(4)

also require that we construe the jurisdictional requirements of Fed. R. App. P. 3(c) liberally. See

Foman v. Davis, 371 U.S. 178, 180-81 (1962); Torres, 487 U.S. at 316-17. Thus, our rule is that

Fed. R. App. P. 3(c)(1) is a jurisdictional rule whose requirements should be liberally construed and

applied.

B. Patronage Dismissal of Deputy County Clerks

Because we have jurisdiction over this appeal, we now turn to the merits. This court reviews

a grant of summary judgment de novo. Adams v. City of Auburn Hills, 336 F.3d 515, 518 (6th Cir.

2003). For the purposes of this appeal, we construe the evidence in the light most favorable to

Plaintiffs and draw all reasonable inferences in their favor. Aiken v. City of Memphis, 190 F.3d 753,

755 (6th Cir. 1999) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

587, 106 S. Ct. 1348 (1986)). We first address the claims of the three deputy county clerk Plaintiffs.

We then address the claims of former County Clerk Lynn Butler, who seeks to be hired as a deputy

clerk.

Since the Supreme Court issued its opinion in Elrod v. Burns, 427 U.S. 347 (1976),

patronage dismissals (i.e., dismissals for failure to support a particular party or candidate) have been,

Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 6

in general, unconstitutional.4 The Supreme Court in Branti v. Finkel, 445 U.S. 507 (1980), clarified

this rule by affirming that, although patronage dismissals were, in general, unconstitutional, “party

affiliation may be an acceptable requirement for some types of government employment.” Id. at

517. The Branti court indicated that the plaintiff must make out a prima facie case that he or she

was discharged because of his or her political affiliation. See id. The defendant then must show that

the plaintiff’s job is of the type that would qualify for an exception to the general rule. Id. The

Branti court described the types of positions that would qualify for the exception as policymaking

positions. Id. This court, in McCloud v. Testa, 97 F.3d 1536, 1557 (6th Cir. 1996), interpreted

Branti by outlining four categories that qualified for the Branti exception:

Category One: positions specifically named in relevant federal, state, county, or

municipal law to which discretionary authority with respect to the enforcement of

that law or the carrying out of some other policy of political concern is granted;

Category Two: positions to which a significant portion of the total discretionary

authority available to category one position-holders has been delegated; or positions

not named in law, possessing by virtue of the jurisdiction’s pattern or practice the

same quantum or type of discretionary authority commonly held by category one

positions in other jurisdictions;

Category Three: confidential advisors who spend a significant portion of their time

on the job advising category one or category two position-holders on how to exercise

their statutory or delegated policymaking authority, or other confidential employees

who control the lines of communications to category one positions, category two

positions or confidential advisors;

Category Four: positions that are a part of a group of positions filled by balancing

out political party representation, or that are filled by balancing out selections made

by different governmental agents or bodies.

Id. at 1557 (footnotes omitted). Thus, since 1996, in this circuit, assuming that a plaintiff makes out

a prima facie case of unconstitutional patronage dismissal, the defendant must show that the job in

question falls within one of the four McCloud categories.

In this case, the district court did not address whether a patronage dismissal of a deputy

county clerk is a constitutional violation. It chose, instead, to rely on qualified immunity in

dismissing the complaint.5 Plaintiffs assert that Defendant failed to rehire them based on their

support of Defendant’s opponent in the election. Viewing the deposition evidence in the light most

favorable to Plaintiffs, there is evidence that Plainiffs supported Defendant’s opponent, that

Defendant was aware of that support, and that Defendant failed to rehire Plainiffs. This evidence

raises a triable question of fact as to whether Defendant engaged in patronage dismissals and

violated Plaintiffs’ constitutional rights.

4

In Branti v. Finkel, 445 U.S. 507, 512 n.6 (1980), the Supreme Court made clear that failure to rehire due to

political affiliation was no different from discharging a worker due to his or her political affiliation. Testimony in the

record indicates that deputy clerks were traditionally reappointed after each election, regardless of whether a new County

Clerk took office. It appears to be undisputed that deputy clerks had a reasonable expectation that they would be

reappointed barring poor job performance, misconduct, or malfeasance.

5

We take this opportunity to remind district courts that they may not assume a constitutional violation or skip

to qualified immunity, even when qualified immunity analysis seems conclusive. Saucier v. Katz, 533 U.S. 194, 201

(2001) (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)).

Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 7

Because Plaintiffs have placed sufficient evidence in the record from which a fact-finder

could infer that Defendant knew that they supported her opponent, the burden shifts to Defendant

to prove that Plaintiffs’ positions fall within one of the four McCloud categories. We decide whether

the deputy county clerk position is a position subject to political patronage as a matter of law.

Mumford v. Basinski, 105 F.3d 264, 271 (6th Cir. 1997) (citing McCloud, 97 F.3d at 1546 and Blair

v. Meade, 76 F.3d 97, 100 n.2 (6th Cir.1996). Unfortunately, Defendant Hollan does not indicate

which McCloud category should apply to deputy county clerks.

The undisputed testimony on the types of jobs Plaintiff deputy county clerks perform reveals

that their jobs are essentially clerical. They either do not have, or do not exercise, the type of

discretion or authority that one would normally associate with a job subject to patronage dismissal

under McCloud. It would, therefore, appear that Plaintiffs’ positions do not fall into any of the

McCloud categories; however, our analysis does not end here.

The so-called “Rice cannon” requires this court to give “some deference” to the legislature’s

determination as to whether a particular job is political. See Rice v. Ohio Dep’t of Transp., 14 F.3d

1133, 1143 (6th Cir. 1994) (quoting Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 246 (1st

Cir. 1986)). Defendant points to three different statutes as evidence of the Kentucky General

Assembly’s understanding of the deputy county clerk position. We address each of the statutes

discussed by Defendant Hollan in turn.

First, Defendant Hollan points to K.R.S. § 62.210, which makes 6

the office of the County

Clerk liable “for the the acts or omissions of deputy county clerks.” In Heggen v. Lee, 284 F.3d

675 (6th Cir. 2002), this court found that K.R.S. § 70.040,7 a statute with almost exactly the same

wording as K.R.S. § 62.210, but which applies to sheriffs, does not convert a deputy sheriff position

into a position subject to patronage dismissal. See Heggen, 284 F.3d at 683. Because we can find

no meaningful difference between the two statutes, adopting our reasoning in Heggen, we find that

the Rice cannon is not implicated by this statute..

Next, Defendant Hollan argues that K.R.S. § 382.990(5), which states that a “County Clerk

who, by [themselves or their deputies], fail[s] to perform any duty enjoined upon them [by any of

several various provisions of the Kentucky Revised Statutes] shall be guilty of8 a violation[,]”

converts the deputy county clerk position into one subject to patronage dismissal. Defendant, in

essence, argues that by virtue of this statute, a County Clerk can be criminally liable for the acts of

his or her subordinates, and that this fact requires her to be able to pick politically compatible

employees. This statute, however, is no more availing than the first, since K.R.S. § 62.210

6

The full text of K.R.S. § 62.210 reads: “The office of County Clerk, rather than the individual holder of the

office, shall be liable for the acts or omissions of deputy county clerks. When a deputy clerk omits to act or acts in such

a way as to render the clerk responsible, and the clerk discharges such responsibility, the deputy clerk shall be liable to

the clerk for all damages and costs which are caused by the deputy's act or omission.” Given that deputy county clerks

can be forced to reimburse the clerk’s office for any acts or omissions, the fact that the clerks office is liable for the

actions of the deputy county clerks is of limited utility in determining whether the position is subject to political

patronage.

7

The full text of K.R.S. § 70.040 reads: “The sheriff shall be liable for the acts or omissions of his deputies;

except that, the office of sheriff, and not the individual holder thereof, shall be liable under this section. When a deputy

sheriff omits to act or acts in such a way as to render his principal responsible, and the latter discharges such

responsibility, the deputy shall be liable to the principal for all damages and costs which are caused by the deputy's act

or omission.”

8

A violation, as defined by K.R.S. § 500.080(17), is: “an offense, other than a traffic infraction, for which a

sentence to a fine only can be imposed.”

Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 8

eliminates any personal criminal liability that could attach to the individual officeholder9 and

because K.R.S. § 62.210 requires deputy county clerks to reimburse the clerks office for any fines

levied on the clerk.

Finally, Defendant Hollan points to K.R.S. § 61.035, which provides that: “Any duty

enjoined by law or by the Rules of Civil Procedure upon a ministerial officer, and any act permitted

to be done by him, may be performed by his lawful deputy.” Although this statute is one of general

application in that it does not specifically mention County Clerks or deputy county clerks, Kentucky

courts have held that it can apply to deputy county clerks in the performance of some duties. See

Hallahan v. Cranfill, 383 S.W.2d 374, 376 (Ky. 1964) (a deputy county clerk can participate in the

public examination of absentee ballot applications by virtue of K.R.S. § 61.035); see also Asher v.

Sizemore, 261 S.W.2d 665, 666 (Ky. 1953) (a deputy county clerk can administer an oath in his or

her own name pursuant to K.R.S. § 61.035). This statute, however, is not a clear enough expression

of the Kentucky General Assembly’s wish to convert the position of deputy county clerk into a

political position covered by one of the McCloud categories. We, therefore, decline to hold that the

Kentucky legislature has determined that the position of a deputy county clerk is a political position

as opposed to a clerical position. Consequently, the Rice cannon is inapplicable.

Because Defendant has not shown that the deputy county clerk position falls under any of

the McCloud categories, and because the Rice cannon is inapplicable, we hold that patronage

dismissals of Kentucky deputy county clerks with routine duties violates the U.S. Constitution.

When the evidence is viewed in the light most favorable to Plaintiffs, questions of material fact exist

as to whether Defendant Hollan violated Plaintiffs’ constitutional rights by terminating them for

political reasons. We now proceed to the second step of our analysis and address whether Defendant

Hollan is entitled to qualified immunity.10

9

K.R.S. § 62.210 does not differentiate between criminal and civil liability. It simply makes the office of the

County Clerk liable for all acts and omissions of deputy clerks. It appears that a violation has no effect other than a

monetary penalty under Kentucky law. K.R.S. § 62.210 also requires deputy clerks to reimburse the office of the County

Clerk for any fines imposed on the office of the County Clerk because of the deputy clerks’ acts or omissions. It would

appear, then, that, under Kentucky law, the exposure of a County Clerk to criminal liability by virtue of the acts of his

or her subordinates is not a large concern.

10

As we recently indicated in Estate of Carter, 408 F.3d at 311 n.2:

Panels of this court occasionally employ a three-step qualified immunity analysis,

as opposed to the two-step analysis set forth here. As two recent opinions indicate,

both the two-step approach and the three-step approach can be said to capture the

holding of Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

Compare Dunigan v. Noble, 390 F.3d 486, 491 n. 6 (6th Cir.2004) (two-step

approach), with Sample v. Bailey, 2005 Fed.App. 0209P, 409 F.3d 689, 696 n. 3

(6th Cir.2005) (three-step approach). The third step is “whether the plaintiff offered

sufficient evidence to indicate that what the official allegedly did was objectively

unreasonable in light of the clearly established constitutional rights.” Champion v.

Outlook Nashville, Inc., 380 F.3d 893, 905 (6th Cir.2004) (internal quotation

omitted). In cases subsequent to Saucier the Supreme Court has not formally broken

up the two steps prescribed by Saucier into three steps, see, e.g., Brosseau v.

Haugen, --- U.S. ----, 125 S.Ct. 596, 596, 160 L.Ed.2d 583 (2004); Groh v.

Ramirez, 540 U.S. 551, 563, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004), but the

three-step approach may in some cases increase the clarity of the proper analysis.

In many factual contexts, however, including this one, the fact that a right is

“clearly established” sufficiently implies that its violation is objectively

unreasonable. Cf. Champion, 380 F.3d at 905.

Like Estate of Carter, this case is one of the many cases where, if the right is clearly established, the conduct at issue

would also be objectively unreasonable. Thus, in order to avoid duplicative analysis, we choose to collapse the second

and third prongs discussed in some of our cases into one prong in this case.

Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 9

C. Qualified Immunity

Defendant Hollan argues that she deserves qualified immunity because the law concerning

patronage dismissals of deputy county clerks was not clearly established, particularly in light of

Cope v. Heltsley, 128 F.3d 452 (6th Cir. 1997). Cope is, at this point, of limited value as precedent.

In Cope, this court assumed that a constitutional violation was present, but granted qualified

immunity on the basis that the law was not clearly established in 1997.11 Id. at 461. In general, it

is of little consequence that this court held that a right was not clearly established at an earlier date.

See Hall v. Tollett, 128 F.3d 418, 429-30 (6th Cir. 1996). A right not clearly established in 1994

(the court was dealing with a failure to renew an appointment that occurred in January of 1994, see

Cope, 128 F.3d at 456), may become clearly established in the intervening time before 2002. Thus,

relying almost exclusively on a case that held that a right was not clearly established many years ago

is not conclusive or persuasive.

Under the doctrine of qualified immunity, “government officials performing discretionary

functions are shielded from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The purpose of the clearly established

prong of the qualified immunity analysis is to insure that the officials were on notice that their

conduct was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“[T]he salient question

that the Court of Appeals ought to have asked is whether the state of the law in 1995 gave

respondents fair warning that their alleged treatment of Hope was unconstitutional.”). Although

notice to the official is critical, qualified immunity is an objective rather than a subjective inquiry.

Cope, 128 F.3d at 458 (“It is important to understand that Mrs. Heltsley's own subjective views on

the legality of her staffing decisions are essentially irrelevant. Whatever she may actually have

thought about the constitutional propriety of what she was doing, the pertinent test is an objective

one, not subjective.” (internal citations and quotation marks omitted)). Rights at issue must be

clearly established, not just in the abstract sense, but in a particularized sense. See Brosseau v.

Hogan, 125 S.Ct. 596, 599 (2004) (finding that “[t]he present case [was] far from the obvious one

where Graham and Garner alone offer a basis for decision,” the court “therefore turn[ed] to ask

whether, at the time of Brosseau's actions, it was clearly established in [a] more particularized sense

that she was violating Haugen's Fourth Amendment right[s].”) (internal quotation marks omitted);

Saucier, 533 U.S. at 202 (“The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.”) (citations omitted); Anderson v. Creighton, 483 U.S. 635, 640 (1987)

(“The contours of the right must be sufficiently clear that a reasonable official would understand that

what he is doing violates that right.”) (citations omitted). The specific act, however, need not have

been held unconstitutional for the right to be clearly established. See Hope v. Pelzer, 536 U.S. 730,

741 (2002) (“[O]fficials can still be on notice that their conduct violates established law even in

novel factual circumstances.”); Anderson, 483 U.S. at 640 (“This is not to say that an official action

is protected by qualified immunity unless the very action in question has previously been held

unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.”).

Thus, while it must be clear to the reasonable official that acts would violate the

Constitution, it is irrelevant what the individual official actually believed about the legality of his

or her action. In addition, the specific action of the official need not have been found to have been

unconstitutional in a prior decision to hold that official liable pursuant to § 1983, but the law must

have established with particularity that the conduct complained of violated the Constitution before

the official engaged in the unconstitutional act.

11

Defendant’s reliance on Cope highlights the danger inherent in any court assuming a constitutional violation

in order to decide a case on the basis of qualified immunity due to the absence of clearly established law.

Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 10

In Hall, this court relied on McCloud v. Testa, 97 F.3d 1536, 1557 (6th Cir. 1996)

(establishing four categories to attempt to capture the positions that can fall under the Branti

exception), to hold that the deputy sheriffs’ duties did not fit into the Branti exception. Hall, 128

F.3d at 429-30. We also held that the sheriff deserved qualified immunity due to the absence of a

clearly established rule forbidding the termination of deputy sheriffs for political reasons. See id.

at 429. We so held, because in Coyle v. Gilley, 957 F.2d 1347 (6th Cir. 1992), we had earlier found

that it was not clearly established that deputy sheriffs were protected from patronage dismissals

under the state of the law in 1992. Hall, 128 F.3d at 430. We also determined that after our decision

in Coyle, but before 1994, when the defendant in Hall acted, no further relevant cases had been

decided. Id. We also noted a split in the circuits. Id. With no decision that patronage dismissals

of deputy sheriffs was impermissible between 1992 and 1994, the defendant in Hall was entitled to

qualified immunity. Id. Here, however, Defendant had not only our earlier decision in Cope, which

assumed that the dismissal of deputy clerks was unconstitutional, Defendant also had our decisions

in Hall and in Heggen as well as McCloud.

In Heggen, in January of 2002, we denied qualified immunity to a Kentucky sheriff accused

of engaging in patronage dismissals in light of Hall. Hager, 284 F.3d at 687. We determined that

Hall alone was sufficient to make the constitutional right prohibiting patronage dismissals clearly

established for Kentucky deputy sheriffs. Id.

On March 29, 2002, in Hager v. Pike County Bd. of Educ., 286 F.3d 366, 369 (6th Cir. 2002),

a teacher was demoted and reassigned after she supported a different candidate for school

superintendent. Her duties consisted mainly of “providing direct services to students, and the

remainder administering the [Gifted and Talented Program (GTP)].” She also worked closely with

the former superintendent to “build and improve the GTP by creating and implementing several new

local programs, obtaining additional grants . . . identifying an increased number of eligible students,

. . . [and] conferr[ing] with the State GTP Consultant . . . .” Id. This court determined that a material

question of fact existed as to whether the new superintendent had violated her First Amendment

rights. Id. at 368.

We believe that Hall, Heggen, and McCloud make the law in this circuit with respect to

patronage dismissals of these types of county employees clearly established with the requisite

specificity to satisfy the Supreme Court’s requirement that the law “clearly establish[] in [a] more

particularized sense” that the act was unconstitutional. Brosseau, 125 S.Ct. at 599.

The duties of the deputy sheriffs described in Hall are little different from the duties of the

deputy clerks here. Deputy sheriffs duties were described in Heggen as “including road patrol,

serving arrest warrants and civil papers, taking complaints and ‘working’ auto accidents, . . .

transport[ing] prisoners[,] and providing courtroom security.” Heggen, 284 F.3d at 679. Heggen

described all of these duties as “nonpolicymaking duties.” Id. at 684. Deputy clerks, whose work

is essentially clerical work, also perform nonpolicymaking duties. Although deputy sheriffs and

deputy clerks engage in different tasks, their respective levels of responsibility and the nature of

their jobs are not so different as to cause this court to find that the law with respect to deputy sheriffs

is clearly established, but that the law with respect to deputy clerks is not clearly established. In

addition, Hager’s duties are also best described as nonpolicymaking duties. It is difficult to

understand how a reasonable official could believe that it would be constitutionally permissible to

terminate a clerical employee like a deputy clerk through political patronage, when this court has

held that it is not constitutionally permissible to terminate a deputy sheriff or a teacher and

administrator of a gifted and talented program through political patronage.

Furthermore, were this court to hold that Hall, Heggen, and Hager did not make the law

clearly established for deputy county clerks, we would be ignoring the Supreme Court’s rule that

“officials can still be on notice that their conduct violates established law even in novel factual

Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 11

circumstances.” Hope, 536 U.S. at 741.12 Were this court to require position-specific findings

before it found that the law was clearly established, we would be, in effect, requiring a previous

finding on the constitutionality of patronage dismissals for every government position before

holding that the law was clearly established for that position. Such a finding could lead to the result

that similarly situated county officials could engage in political patronage dismissals at least once

with impunity, unless and until a court ruled on the constitutionality of political patronage for that

particular position. Such a result is not warranted by logic or precedent.

Finally, the memo circulated to new executives by the county attorney that specifically

warned Defendant against patronage dismissals appears to be relevant to the question of notice in

this case. It is, of course, irrelevant what Defendant Hollan believed the state of the law to be;

indeed, the record is silent as to whether she believed that she could constitutionally discharge her

employees for political reasons. The very fact, though, that the county attorney sent her the memo

indicates that she was on notice that patronage dismissals were, in general, prohibited under clearly

established law, even if the memo did not go into detail about whether she as County Clerk could

engage in patronage dismissals. A reasonable county official, having received that memo, would

have been on notice that patronage dismissals were, in general, prohibited.

In sum, by virtue of McCloud, Heggen, and Hager, Defendant had sufficient notice that

patronage dismissals in Kentucky were constitutionally suspect. These cases alone are enough to

find that the rule prohibiting patronage dismissals of deputy county clerks was clearly established.

The memo from the Boyd County Attorney warning new county executives against patronage

dismissals further solidifies our holding that a reasonable official would be on notice that patronage

dismissals would violate the constitutional rights of county employees in most circumstances.

In Cope, Judge Nelson asked: “Would it have been possible, at the end of 1993, for a

reasonable person, newly-elected a Kentucky County Clerk, to believe that the law entitled her to

take political compatibility into account in deciding whom to retain as her deputy clerks? The

answer, we think, is ‘yes.’” Cope, 128 F.3d at 460. In view of the cases subsequent to Cope, the fact

that Cope assumed a constitutional violation, and the county attorney’s memo, the answer, we think,

to that same question, in 2003, was clearly “no.” Thus, the district court erred in granting Defendant

Hollan qualified immunity for claims brought against her in her individual capacity.

D. Official Capacity Claims

A suit against a person in his or her official capacity is a suit against the office and not the

person. Pusey v. City of Youngstown, 11 F.3d 652, 694-95 (6th Cir. 1993). Suits alleging that a city

or municipality is liable for a constitutional tort brought pursuant to § 1983 must also allege that the

violation resulted from the city’s or municipality’s official policy or custom. See id. See also

Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691 (1978). “In appropriate

circumstances, a single act may rise to the level of policy or custom. With regard to policy, a single

act can constitute municipal policy ‘where the decisionmaker possesses final authority to establish

municipal policy with respect to the action ordered.’” Pusey, 11 F.3d at 659 (quoting Pembaur v.

City of Cincinnati, 475 U.S. 469, 481 (1986)).

To maintain a suit against Defendant Hollan in her official capacity, Plaintiffs must show that

the County Clerk had final authority to establish official policy with respect to the hiring of her

deputy clerks. See, e.g., Pembaur, 475 U.S. at 483 n.12. The district court relied on an unpublished

12

While we are mindful that the standard at issue is whether a reasonable official would be on notice rather than

would a reasonable lawyer be on notice, because the Supreme Court has indicated that novel factual circumstances can

still be subject to clearly established law, the Supreme Court seems to assume that the reasonable official is capable of

drawing analogies between disparate factual situations.

Nos. 04-6017/6018 Caudill, et al. v. Hollan Page 12

decision of this court, Cope v. Heltsley, No. 98-5253, 1999 WL 232687 (6th Cir. Apr. 16, 1999), and

found that Plaintiffs had not offered any evidence that the County Clerk had the authority to

establish county policy with respect to the hiring of deputy clerks. In their briefs on appeal,

Plaintiffs state that they appeal the district court’s grant of summary judgment to Defendant Hollan

in her official capacity, but they point to no evidence that the County Clerk had the authority to

establish county policy with respect to the hiring of deputy clerks, nor do they direct us to any law,

statutory or otherwise, giving that power to the elected County Clerk. After reviewing the record,

we can find no evidence or law that would establish that Hollan, as County Clerk, had the power to

adopt a policy of refusing to rehire deputy clerks for political or patronage reasons. For these

reasons, we find no basis to reverse the District court’s grant of summary judgment in favor of

Defendant for claims brought against her in her official capacity.

E. Plaintiff Butler’s Claims

Finally, we address the claims of Plaintiff Lynn Butler. Plaintiff Lynn Butler was the former

Boyd County Clerk, and, therefore, the holder of a political position. Because hers was a political

position, she had no expectation of being retained by Defendant Hollan, who was elected to replace

her. It is irrelevant that she had been a deputy clerk when she was appointed to the position of

County Clerk after the death of the previous clerk. It is also irrelevant that she did not run13for office

against Defendant Hollan. Thus, the district court did not err in dismissing her claims.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to

Defendant Hollan with respect to the claims of Plaintiff Lynn Butler, AFFIRM the district court’s

judgment with respect to its grant of summary judgment in favor of Defendant Hollan in her official

capacity as Boyd County, Kentucky, County Clerk, but we REVERSE the district court with

respect to its grant of summary judgment on the basis of qualified immunity to Defendant Hollan

in her individual capacity for the claims made by the deputy county clerk plaintiffs. We REMAND

those claims to the district court for further proceedings not inconsistent with this opinion.

13

Further, although Plaintiff Butler joined the deputy clerk Plaintiffs’ appeal, Plaintiffs’ briefs to this court did

not present any argument on behalf of Butler. Thus, we alternatively hold that Butler waived her arguments on appeal.

Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005) (“[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived.”). See also Radvansky v. City of

Olmsted Falls, 395 F.3d 291, 311 (6th Cir. 2005) (“[Plaintiff’s] failure to raise an argument in his appellate brief

constitutes a waiver of the argument on appeal.”).