Mitchell, Johnnie v. Randolph, Lonnie

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3943

Johnnie Mitchell,

Plaintiff-Appellee,

v.

Lonnie Randolph,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 2:98cv0484 AS--Allen Sharp, Judge.

Argued May 8, 2000--Decided June 15, 2000

Before Posner, Chief Judge, and Bauer, and

Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge. Johnnie

Mitchell had a successful, and so far as

the record shows, uneventful, career with

the City of East Chicago, Indiana, for 25

years. For much of that time, she had

been a political supporter of Mayor

Robert A. Pastrick. From 1973 to 1998,

she worked as court coordinator for a

judge of the East Chicago City Court,

Judge Del Marie Williams. Judge Williams

died in 1998, however, and on August 3,

1998, her successor was appointed,

defendant Judge Lonnie Randolph. Judge

Randolph, a political foe of Mayor

Pastrick, demoted Mitchell to part-time

status shortly after he was sworn in. He

then restructured her former job, renamed

it "community coordinator," and hired

Charlotte Mahone for the new position.

Mitchell did not last long under the new

arrangement. She quit in the third week

of August 1998, claiming constructive

discharge, and filed suit under 42 U.S.C.

sec. 1983 against Judge Randolph on

August 27, 1998. She claimed that Judge

Randolph had retaliated against her in

violation of her First Amendment right to

political speech, by demoting and

constructively discharging her. She

included a 42 U.S.C. sec. 1985 claim

against Judge Randolph and Bobby

Cantrell, East Chicago Republican

Chairman, who she asserted had phoned her

to tell her of her demotion. Mitchell

alleged that the two had conspired to

deprive her of her constitutional rights.

Bobby Cantrell responded with a 12(b)(6)

motion to dismiss the charge against him.

Judge Randolph filed a motion for summary

judgment based on qualified immunity on

August 31, 1999. The parties appear to

have believed that Mitchell had 30 days

to respond to Judge Randolph’s motion,

perhaps because they assumed that the

time period for responding to a summary

judgment motion in the federal court

matched the 30-day period afforded by

Rule 56 of the Indiana Rules of Trial

Procedure. (If so, they were

unequivocally wrong; Local Rule 56.1 of

the U.S. District Court for the Northern

District of Indiana provides a 15-day

period for a party to respond to a motion

for summary judgment.) The district court

itself did not establish a deadline for

her response.

Confusion erupted on September 24, 1999,

when the district court issued an order

which dismissed the conspiracy claim and

terminated Bobby Cantrell as a defendant,

and, in an obscure fashion, appeared to

deny Judge Randolph’s summary judgment

motion. The order also dismissed a

discrimination claim which no one,

including Mitchell, had ever made or

mentioned. Mitchell and Judge

Randolphbecame somewhat bewildered.

Mitchell, who thought that she still had

time to respond to the summary judgment

motion, assumed the motion had not been

definitively ruled upon. On September 30,

1999, she filed a motion to extend her

time to respond until October 29, 1999.

The district court, apparently agreeing

with her assumption, granted that motion

on October 4, 1999. Judge Randolph, also

unsure of the status of his summary

judgment motion, filed a motion for

clarification of the September 24 order

on October 15, 1999. The district court

responded on October 18, 1999, by

ordering a pretrial conference on the

issue, to be held October 29, 1999. At

that conference, the district court

explained that its September 24, 1999,

order had indeed denied Judge Randolph’s

summary judgment motion. (The court never

mentioned the fact that Mitchell had not

filed a response to Judge Randolph’s

motion within the 15-day period given by

Local Rule 56.1, and so it is impossible,

especially in light of the court’s

intervening orders, to say whether that

factor affected its decision to rule

without hearing from her.) The end result

was a denial of the summary judgment

motion based on a record devoid of

anyresponse to the motion by Mitchell.

Judge Randolph appealed the September 24

denial under Mitchell v. Forsyth, 472

U.S. 511, 526 (1985). While the record is

far more confused than we would prefer,

we conclude that the district court did

not err in refusing to resolve the case

on qualified immunity grounds, and we

therefore affirm.

I

The standards under which we assess a

claim of qualified immunity are by now

well established. See generally Siegert

v. Gilley, 500 U.S. 226 (1991); Harlow v.

Fitzgerald, 457 U.S. 800 (1982). First,

after a state defendant has properly

invoked this defense, the plaintiff must

show that her claim states a violation of

her constitutional or statutory rights;

and second, the plaintiff must show that

the applicable legal standards were

clearly established at the time the

defendants acted. See Harrell v. Cook,

169 F.3d 428, 431 (7th Cir. 1999); see

also Denius v. Dunlap, No. 99-1402, 2000

WL 365973, at *3 (7th Cir. April 11,

2000); Coady v. Steil, 187 F.3d 727, 731

(7th Cir. 1999). The procedural posture

of the case matters as well. If

resolution of a claim of qualified

immunity depends on disputed issues of

material fact, not only must it await a

full trial, but it is also not a proper

subject for an interlocutory appeal. See

Johnson v. Jones, 515 U.S. 304, 307

(1995); Clash v. Beatty, 77 F.3d 1045,

1048-49 (7th Cir. 1996).

Although the district court nominally

resolved the present case upon the

defendant judge’s motion for summary

judgment, a closer examination of the

proceedings indicates that this is not

quite what happened. Instead, the court

pretermitted the normal process by ruling

on the defendant’s summary judgment

motion 35 days before the plaintiff had

reason to believe her response was due.

(We put it this way because plaintiff

thought she had until October 29 to

respond, as that was what the October 4

order said, even though the judge later

decided that he had already denied Judge

Randolph’s motion.) The court’s early

ruling naturally affected the record that

was created for purposes of appellate

review, because it effectively prevented

the plaintiff from introducing evidence

that would have supported the judge’s

decision that disputed issues of fact

existed. The judge’s ruling was in favor

of the plaintiff’s position, which meant

that plaintiff had no occasion to

supplement the record or to seek

reconsideration after the decision was

made.

Under these somewhat unusual

circumstances, we think the best approach

to take is to review the decision denying

qualified immunity as if it had been a

decision on the pleadings under Fed. R.

Civ. P. 12(c). This has several

implications. First, it means that we

take the facts in the light most

favorable to the opponent of the summary

judgment motion, and we draw all

reasonable inferences from the pleadings

in her favor. Second, it means that our

decision in this case is based only on

the abbreviated record created by the

pleadings.

With these precautionary remarks in

mind, we turn to Judge Randolph’s appeal.

It is clear that Mitchell has stated a

claim for a deprivation of her

constitutional rights. She argues that

her demotion and constructive discharge

violated her First Amendment right to

political speech. To support this claim,

she relies on the Supreme Court’s

political patronage cases, including

Elrod v. Burns, 427 U.S. 347 (1976);

Branti v. Finkel, 445 U.S. 507 (1980);

and Rutan v. Republican Party of

Illinois, 497 U.S. 62 (1990). See also

O’Hare Truck Serv., Inc. v. City of

Northlake, 518 U.S. 712, 718-19 (1996).

According to her complaint, she had a

low-level, clerical position in the city

court office. She had also been a long-

time supporter of Judge Randolph’s

political foe, East Chicago Mayor

Pastrick (indeed, Judge Randolph had

twice run for Mayor against Mayor

Pastrick, both times unsuccessfully).

Upon his arrival at the court, Judge

Randolph retaliated against her for her

political views, first through the

demotion and then through the

constructive discharge. Shortly after he

demoted Mitchell, Judge Randolph

attempted to sanitize his actions by

creating a new position that included

both Mitchell’s old duties and some new

responsibilities that entailed more

contact with the general public.

These allegations state a claim under

the relevant line of First Amendment

cases. This is not to say that questions

do not remain for later resolution. One

such question is whether Mitchell’s

former job was properly characterized as

clerical in nature, or if it was the kind

of policy-making or confidential position

for which party affiliation is an

acceptable requirement. See Branti, 445

U.S. at 518. Another question is whether

Judge Randolph’s decision to create the

new position of community coordinator

represented a bona fide desire to re-

deploy his office staff, or if it was

instead part of a sham designed to

facilitate a politically motivated attack

against Mitchell. Authority given to the

new community coordinator in excess of

that ascribed to Mitchell’s position by

state regulation or common practice might

evidence a sham. See, e.g., Meeks v.

Grimes, 779 F.2d 417, 420 n.1 (7th Cir.

1985) (asking whether the tasks delegated

to a new position were within the

inherent power of that position). A third

question is whether the new position of

community coordinator itself, assuming

that it was bona fide, qualified for the

policy-making or confidentiality

exception to Elrod, Branti, and Rutan. We

conclude only that, under Mitchell’s

alleged facts, Judge Randolph demoted and

constructively fired her not because he

wanted to reorganize his office, but

because he did not want his political

foe’s supporter answering the telephone,

filing warrants, and coordinating pre-

trial services in his office. A

reasonable trier of fact could find that

these tasks are sufficiently clerical, if

they indeed represent the sum total of

Mitchell’s activities, that she was

protected against politically motivated

retaliation.

The present record does not reveal

exactly what positions a city court judge

is entitled to create, or what

responsibilities he or she may delegate

to a person on the court’s staff. Like

most states in the United States, Indiana

has embraced the principle of separation

of powers in its constitution. See Ind.

Const. art. III, sec. 1. It has vested the

judicial power of the state in its

Supreme Court, Court of Appeals, Circuit

Courts, and "such other courts as the

General Assembly may establish." Id.,

art. VII, sec. 1. Included among those

"other courts" are the city courts, such

as the one to which Judge Randolph was

appointed. Ind. Code sec. 33-10.1-1-3.

Judges of those courts are considered to

be "judicial officers" of the State of

Indiana for all purposes. See, e.g.,

Indiana Rules for Admission to the Bar

and the Discipline of Attorneys, Rule 25.

Article II of those rules defines the

term "judicial officer" to include

everyone from justices of the Indiana

Supreme Court itself and judges of the

court of appeals, to tax court judges and

judges of any "Circuit, Superior, County,

City or Town Court of the State."

(Emphasis added.) City court judges are

normally elected to office by the voters

of the city or town, pursuant to Ind.

Code sec. 3-10-6 or sec. 3-10-7. See Ind.

Stat. sec. 33-10.1-3-1.1(a). Vacancies

that occur between elections are filled

by the governor. Ind. Stat. sec.

3-13-8-2. Last, city court judges are

subject to the Code of Judicial Conduct

that Indiana has enacted for all of its

judicial officers. Indiana Rules for

Admission to the Bar and the Discipline

of Attorneys, Rule 25.

We cannot say on the basis of the

present record whether or not the duties

Judge Randolph has entrusted to his new

community coordinator all fall within the

recognized scope of judicial powers or

ancillary services, consistently with

Indiana law. Perhaps they do. The

coordinator’s duties are wide-ranging in

scope, including expanded services to

meet the needs of East Chicago’s

residents for drug and alcohol treatment

programs, referral services for community

work programs, a mock court program for

local schools, a junior judge program for

the high schools, and a mental health

referral service. Judge Randolph frankly

states in his brief that these programs,

as administered by Mahone (Mitchell’s

replacement), "could have been a

significant factor in his successful

reelection in November 1999." If this

means only that the voters were happy

with an efficient, well run office, there

is nothing to criticize. If, however, it

means that the judge got Mitchell out of

the way so that he could use his judicial

office for more executive or politically

motivated tasks, the inference that he

retaliated against her for her views

would be stronger.

We add only a word about the other part

of the test for qualified immunity:

whether the right in question was clearly

established at the time the public

official acted. Judge Randolph’s actions

took place in August 1998, long after the

leading Supreme Court decisions in this

area were handed down, and long after

this court had made clear in a number of

cases that political retaliation against

lower level employees violated their

First Amendment rights. See, e.g., Elrod,

427 U.S. at 350; Branti, 445 U.S. at 516;

Flenner v. Sheahan, 107 F.3d 459, 465

(7th Cir. 1997). We stress again that

nothing in this decision prevents an

elected official (or here, a state judge)

from effecting a good faith

reorganization of an office. If that

turns out to have been Judge Randolph’s

motivation for his actions against

Mitchell, she will lose. If, however, he

acted for impermissible political reasons

and then shuffled things around to suit

his needs, then her First Amendment

rights were violated. If his motives were

mixed, then under this court’s en banc

decision in Rakovich v. Wade, 850 F.2d

1180 (7th Cir. 1987), the correct

analysis will be the one established in

Mt. Healthy City School Dist. v. Doyle,

429 U.S. 274 (1977): the plaintiff must

show that the constitutionally protected

conduct was a substantial or motivating

factor in the public employer’s decision,

and then (to escape liability) the

defendant must show that it would have

reached the same decision even in the

absence of the protected conduct. 429

U.S. at 287; Rakovich v. Wade, 850 F.2d

at 1189. See also Gooden v. Neal, 17 F.3d

925, 928 (7th Cir. 1994).

We therefore affirm the district court’s

decision to deny Judge Randolph’s motion

for summary judgment based on the

qualified immunity defense.

AFFIRMED.