Haddock v. Tarrant Cty

Case: 19-11327 Document: 00515727253 Page: 1 Date Filed: 02/01/2021

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

February 1, 2021

No. 19-11327 Lyle W. Cayce

Clerk

Diane Scott Haddock,

Plaintiff—Appellant,

versus

Tarrant County, Texas; Patricia Baca-Bennett;

Kenneth Earl Newell; Jesus Nevarez, Jr.; Honorable

Judith Wells; Jerome S. Hennigan; James B. Munford;

Alex Kim,

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:18-CV-817

Before Clement, Ho, and Duncan, Circuit Judges.

Edith Brown Clement, Circuit Judge:

Appellant Diane Haddock sued the seven district judges of Tarrant

County’s family law courts (the “District Judges”) in their official capacities,

District Judge Patricia Baca-Bennett in her personal capacity, and the County

under 42 U.S.C. § 1983, alleging that she was fired for refusing to support a

political candidate and for her husband’s political activity. Holding that

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Haddock was both a policymaking and confidential employee lawfully subject

to patronage termination, the district court dismissed her suit. We AFFIRM.

I. Facts and Proceedings

Tarrant County family courts are presided over by seven elected

district judges, who, in turn, are assisted by seven appointed associate judges.

Haddock was an associate judge for nearly twenty years. Because they serve

more than one district judge, Texas law requires Tarrant County associate

judges be appointed with the unanimous approval of the district judges; they

can be removed, however, by a majority vote. Tex. Fam. Code

§§ 201.001(d), 204(b).

In 2016, Haddock and fellow associate judge James Munford indicated

interest in running for a district judge position. It was believed they would

run against one another for the 322nd district seat. Around the same time,

the grandparents of a child who died while in her mother’s custody—after

Haddock had signed the order giving the mother custody—circulated claims

that Haddock had mishandled the case, going so far as to allege that she had

taken a bribe. 1 Munford’s wife allegedly repeated these harsh allegations

publicly, presumably to gain political advantage for her husband. Haddock

decided not to run, but she and her husband do not appear to have reconciled

with Munford and his wife.

During the campaign, although Haddock herself allegedly did not

engage in any overt political activity, her husband campaigned against

Munford. Mr. Haddock and a political group with which he was associated

accused Munford of being a “RINO” (Republican In Name Only), violating

the Second Amendment by signing protective orders requiring litigants to

1

We are aware of no evidence whatsoever that supports this allegation.

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surrender their firearms on inadequate evidence, physically abusing and

sexually assaulting his first wife, and terrifying his current wife by threatening

her and a male friend of hers with a gun.

District Judge Patricia Baca-Bennett, who supported Munford’s

candidacy, allegedly sought to put a stop to Mr. Haddock’s opposition by

demanding that Haddock publicly support Munford and “get her husband

under control.” Haddock refused to do either. Baca-Bennett allegedly

subjected Haddock to “badgering, threats, back-biting, undermining and

maligning, and a campaign to orchestrate the termination of [Haddock’s]

employment.” She also allegedly sought to intimidate Haddock’s husband

by reminding him “who Diane works for” and spread rumors about Haddock

resigning that “undermined [Haddock’s] authority as a judge.”

During the campaign, Haddock also learned that the district judge for

her own District 233 was retiring. Kenneth Newell won the Republican

primary (he then ran unopposed, meaning he knew then that he would

become District 233’s district judge), so he spoke with Haddock about her

future as the District 233 associate judge. He indicated that he was concerned

about the political situation and had “not made a decision about what to do

with” Haddock.

Following unsuccessful complaints to Tarrant County’s human

resources department, Haddock eventually sued Baca-Bennett and Tarrant

County for subjecting her to a hostile work environment in retaliation for her

husband’s political activity and her own refusal to support Munford. Fewer

than ninety days later, she was terminated by a majority of the seven district

judges, including Newell. She amended her complaint to address her

termination, add the District Judges in their official capacities as defendants,

and demand reinstatement or front pay in lieu thereof.

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The district court dismissed Haddock’s claims for money damages

against the District Judges in their official capacity under Rule 12(b)(1),

holding that the suit is barred by the Eleventh Amendment because the

District Judges are state officials, meaning “the state was the real, substantial

party in interest,” and the state has not waived sovereign immunity. See Va.

Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 255 (2011) (cleaned up).

Haddock does not appeal this ruling.

The district court also dismissed Haddock’s claim for injunctive relief

against the District Judges under Rule 12(b)(6). The First Amendment

generally prohibits adverse employment actions against government

employees based on political affiliation, Elrod v. Burns, 427 U.S. 347, 373

(1976), but, where “an employee’s private political beliefs would interfere

with the discharge of [her] public duties, [her] First Amendment rights may

be required to yield to the State’s vital interest in maintaining governmental

effectiveness and efficiency,” Branti v. Finkel, 445 U.S. 507, 517 (1980).

Sometimes called the Elrod/Branti exception, this maxim most often applies

to employees in policymaking or confidential positions.

Finding that Haddock’s position involved both policymaking and

confidential relationships with the District Judges and, “[t]herefore, an

associate judge’s political ideology, associations, and activities may rationally

influence a district judge’s assessment of the individual’s suitability for a

position as an associate judge,” the district court held that she had failed to

state a claim on which relief could be granted against the District Judges and

dismissed Haddock’s demands for injunctive relief under Rule 12(b)(6).

Haddock v. Tarrant Cnty., No. 4:18-cv-00817-O, 2019 WL 7944073, at *7–8

(N.D. Tex. Sept. 11, 2019).

The district court dismissed all claims against Tarrant County under

Rule 12(b)(6), both because Haddock had failed to allege an underlying

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constitutional violation and because she had failed to allege a county policy

or policymaker that caused the alleged violation. Finally, the district court

dismissed all claims against Baca-Bennett under Rule 12(b)(6) on the basis of

qualified immunity. Haddock timely appealed.

II. Standard of Review

We review a dismissal on the pleadings under Rules 12(b)(1) or

12(b)(6) de novo, “accepting all well-pleaded facts as true and viewing those

facts in the light most favorable to the plaintiffs.” Wolcott v. Sebelius, 635 F.3d

757, 762–63 (5th Cir. 2011) (citation omitted). “Generally, a court ruling on

a 12(b)(6) motion may rely on the complaint, its proper attachments,

documents incorporated into the complaint by reference, and matters of

which a court may take judicial notice.” Id. at 763 (cleaned up).

III. Discussion

A.

Haddock argues on appeal that the district court erred in applying the

Elrod/Branti exception to her First Amendment claims because she claims

that she is neither a policymaker nor a confidential employee. She also argues

that her intimate association claim (allegedly, Baca-Bennett retaliated against

Haddock for her husband’s speech, not her own) is—categorically—not

subject to the Elrod/Branti exception. We disagree.

Haddock also argues that the Supreme Court’s balancing test in

Pickering v. Board of Education, 391 U.S. 563 (1968), would be more

appropriate than an Elrod/Branti analysis. We need not analyze this

argument in any great depth; where the Government’s interest in political

loyalty is weighed against an employee’s First Amendment interests, the

tests frequently merge. See Maldonado v. Rodriguez, 932 F.3d 388, 392 (5th

Cir. 2019) (“This court’s decisions have melded the Supreme Court’s

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discussion of these principles in Branti v. Finkel with the broader but similar

Pickering–Connick test.”). Generally speaking—and applicable here—if the

Elrod/Branti exception applies, the Pickering analysis is also concluded.

We also note that the test, strictly speaking, is not about whether an

employer is a policymaker or confidential employee. “[R]ather, the question

is whether the hiring authority can demonstrate that party affiliation is an

appropriate requirement for the effective performance of the public office

involved.” Branti, 445 U.S. at 518. That said, “where a public employee . . .

occupies a confidential or policymaking role, the employer’s interests more

easily outweigh the employee’s First Amendment rights.” Maldonado, 932

F.3d at 392 (alteration in original) (quoting Gentry v. Lowndes Cnty., 337 F.3d

481, 486 (5th Cir. 2003)).

(1)

Haddock’s pleadings, combined with Texas law, make clear that she

is a policymaker subject to the Elrod/Branti exception, and political affiliation

is relevant to her qualification for the associate judge position.

The reason the Elrod/Branti exception typically applies to

policymakers is that such employees are uniquely positioned to frustrate the

policy agendas of the elected officials for whom they work. As our colleagues

on the Seventh Circuit have explained, “it would undermine the democratic

process to hold that the winners at the polls may not employ those committed

to implementing their political agenda.” Kurowski v. Krajewski, 848 F.2d 767,

770 (7th Cir. 1988).

“Policymakers are ‘public employees whose responsibilities require

more than simple ministerial competence, whose decisions create or

implement policy, and whose discretion in performing duties or in selecting

duties to perform is not severely limited by statute, regulation, or policy

determinations made by supervisors.’” Garza v. Escobar, 972 F.3d 721, 729

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(5th Cir. 2020) (quoting Aucoin v. Haney, 306 F.3d 268, 273 (5th Cir. 2002)).

“An employee with responsibilities that are not well defined or are of broad

scope more likely functions in a policymaking position.” Stegmaier v.

Trammell, 597 F.2d 1027, 1033 (5th Cir. 1979).

Haddock argues that judges, categorically, cannot be policymakers

because they merely apply the law to the facts of a case. Although we

appreciate this aspirational view of the judiciary generally, both the structure

of the judiciary in Texas and Haddock’s pleadings refute this argument.

Haddock relies heavily on a case recently reversed by the Supreme

Court, in which the Third Circuit held that “a judicial officer, whether

appointed or elected, is not a policymaker.” See Adams v. Governor of Del.,

922 F.3d 166 (3d Cir. 2019), rev’d sub. nom. Carney v. Adams, 141 S. Ct. 493

(2020) (reversing on standing grounds without comment on whether judges

are policymakers). Adams is unpersuasive for reasons beyond its reversal.

First, the categorical pronouncement was mere dicta; the context of

the case was Delaware’s constitutional structure, which required

consideration of political party when appointing judges. This structure itself,

the Third Circuit reasoned, demonstrated “that political loyalty is not an

appropriate job requirement for Delaware judges” because it required the

Governor to occasionally “nominate judges who belong to a different

political party.” Id. at 179. In contrast, the Texas constitution leaves the

selection of judges to the electorate, with no requirement or expectation that

voters ever knowingly select a judge with whom they disagree.

Second, we are guided by the unanimous opinion of our colleagues on

other Circuits that judicial officers can be (and often are) policymakers. See,

e.g., Mumford v. Basinski, 105 F.3d 264, 272 (6th Cir. 1997) (family law

referee’s “political ideology, associations, and activities may rationally

influence a judge’s assessment of an individual’s suitability for a position as

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his referee”); Kurowski, 848 F.2d at 770 (“A judge both makes and

implements governmental policy. A judge may be suspicious of police or

sympathetic to them, stern or lenient in sentencing, and political debates rage

about such questions.”); cf. Hawkins v. Steingut, 829 F.2d 317, 318 (2d Cir.

1987) (granting qualified immunity for dismissal of Workers’ Compensation

referee “referred to by the Board as ‘Workers’ Compensation Law

judges’”). Particularly where, as here, judges are elected based on both

personal and political qualifications, we see no reason why they or their

appointees should be categorically excluded as policymakers. In Texas, as

“[i]n most states[,] judges are elected, implying that the office has a political

component.” Kurowski, 848 F.2d at 770.

Finally, the specific facts of this case illustrate that the associate judge

position was a policymaking role. The Sixth Circuit’s opinion in Mumford is

particularly illuminating. Mumford was a Domestic Relations Court referee,

with authority to “conduct [ ] hearings on the matters referred to him, [ ]

issu[e] [ ] subpoenas, [ ] swear[ ] and examin[e] [ ] witnesses, . . . promulgat[e]

[ ] evidentiary rulings and . . . [enter] certain pretrial, discovery, temporary

restraining, and other orders necessary to regulate the proceedings, all

without judicial ratification.” Mumford, 105 F.3d at 272.

Similarly, once a case is referred to a Tarrant County associate judge,

they can hear “any aspect of a suit over which the court has jurisdiction . . .

including any matter ancillary to the suit.” 2 Tex. Fam. Code

2

This includes the authority to: conduct hearings, hear and rule on admissibility of

evidence, compel production of relevant evidence, issue a summons for the appearance of

a witness, examine a witness, swear a witness for a hearing, make findings of fact, formulate

conclusions of law, recommend an order, regulate all proceedings in a hearing before them,

order the attachment of a witness or party who fails to obey a subpoena, order detention of

a witness or party found guilty of contempt, and render and sign a final order agreed to in

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§ 201.005(a). Most of an associate judge’s decisions are subject to de novo

review by the presiding district judge, but associate judges can also issue final

orders in cases in which the parties have waived the right to a de novo

hearing. Tex. Fam. Code § 201.007. Even where a party requests de novo

review, an associate judge’s orders remain in full effect unless and until they

are reversed. Tex. Fam. Code § 201.013. Like the referees in Mumford,

Tarrant County associate judges “effectively make[ ] policy for, or suggest[ ]

policy to, the court on each occasion that [they] resolve[ ] a dispute in the

court’s name or recommend[ ] a disposition to a judge.” 105 F.3d at 272.

There can be no question that Haddock was entrusted with the type of broad

discretion that paradigmatically characterizes a policymaker.

More crucially, Haddock’s complaint shows that the policymaking

functions of an associate judge were directly relevant during judicial

elections. Munford’s performance as an associate judge—including degree

of party fealty (whether he was a “RINO”) and attitude toward political hot-

button topics like gun rights—were key campaign issues. Haddock, by her

own allegations, was fired at least in part (if not entirely) because of her

husband’s speech on those specific topics. Haddock herself had planned to

run for a district judgeship until controversy over her own decision-making

as an associate judge led her to drop out of the race.

As the Sixth Circuit explained, “judges are policymakers because

their political beliefs influence and dictate their decisions on important

jurisprudential matters.” Newman v. Voinovich, 986 F.2d 159, 163 (6th Cir.

1993). Judicial temperament (for example, willingness to issue protective

orders) is directly relevant to the job of Tarrant County family court associate

writing by the parties, a final default order, a temporary order, or a final order in a case in

which the parties have waived hearing. Tex. Fam. Code § 201.007.

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judges and is an important aspect of the political qualifications—and electoral

fortunes—of the district judges they represent. Haddock herself notes the

importance of associate judges understanding and respecting what she terms

district judge’s “preferences.” For example, one “district judge will nearly

always order a batterer’s intervention course. Another will almost never

order a social study in child custody cases.”

The voters of Tarrant County should not have to wonder whether the

district judges they elect will be able to carry out the will of the electorate

without constant oversight of their associate judges. Instead, district judges

are entitled to select associate judges they trust to carry out their policy

preferences. Haddock was a policymaker, so, to the extent that her claims are

premised on perceived political disloyalty—whether because she refused to

support Munford, was believed to agree with her husband’s anti-Munford

advocacy, or for whatever other reason—her termination was constitutional

under the Elrod/Branti doctrine.

(2)

Haddock was also a confidential employee. “A government employee

may be ‘confidential’ ‘if he or she stands in a confidential relationship to the

policymaking process, e.g., as an advisor to a policymaker, or if he or she has

access to confidential documents or other materials that embody

policymaking deliberations and determinations, e.g., as a private secretary to

a policymaker.’” Garza, 972 F.3d at 729 (quoting Maldonado, 932 F.3d at

393). If a superior official would be unable to carry out her duties as efficiently

or to delegate sensitive tasks when she did not feel she could trust an

employee to keep her confidences, that is likely a confidential employee.

Associate judges are “privy to confidential”—and, given the nature

of family law matters, often extremely sensitive—“litigation materials and

internal court communications in the discharge of [their] duties, and further

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maintain[ ] a personal confidential relationship with the judge(s) which [they]

serve[ ].” Mumford, 105 F.3d at 272. Whether in private conversation with

district judges or in writing when they “resolve[ ] a dispute in the court’s

name or recommend[ ] a disposition to a judge,” the associate judges serve

as advisors and confidants to the district judges, aiding them in the execution

of their duties. Id.

Haddock argues that she cannot be a confidential employee because

seven associate judges working for seven district judges results in “forty-nine

independently developing working relationships”—too many relationships,

she argues, to implicate the sort of close, personal relationships characteristic

of confidential employees. First, Haddock’s math is misguided—this case

has nothing to do with her relationships with the other associate judges. Only

seven working relationships are relevant—between Haddock and her

superiors, the district judges. We suspect all of our twenty-five colleagues on

this court would agree that judges can reasonably be expected to maintain at

least seven close, yet professional working relationships.

Second, this numerical argument is firmly foreclosed by precedent.

See, e.g., Gentry, 337 F.3d at 486 (“[I]f a public employee’s loyalty is owed to

a [five-]member governing board, he cannot choose political favorites or

enemies among the board because shifting coalitions or electoral victories

may too easily render the employee’s decisions, made in accord with personal

preference, at odds with the board majority view.”); Kinsey v. Salado Indep.

Sch. Dist., 950 F.2d 988, 996 (5th Cir. 1992) (en banc) (school

superintendent’s loyalty may be required by a seven-member school board).

Further, Haddock’s pled facts—which at this stage, we must presume

to be true—make clear that the associate judges and district judges developed

close, personal relationships that involved the exchange of confidences,

including on politically sensitive and policy-oriented topics. Haddock

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discussed electoral politics and her own prospective campaign with District

Judge William Harris—her supervising District 233 judge prior to Newell’s

election. She ultimately decided not to run for office based, in part, on his

advice. We also know that Newell replaced Haddock with a close associate

(the friend who “emceed” his investiture).

Our colleagues on the Seventh Circuit note that, where personal

interactions are an important part of the work environment, “[p]olitical

animosity . . . can in practice create a hostile work environment where face to

face contact and cooperation are essential,” in some cases harming the

efficiency of the office. See Meeks v. Grimes, 779 F.2d 417, 423 (7th Cir. 1985).

This is precisely what happened here. Haddock alleges that she accused

Baca-Bennett of unethical judicial conduct—specifically, “violat[ing] the

canons governing active judges”—by openly campaigning for Munford. The

Haddocks and Munfords lobbed vitriolic campaign rhetoric at each other that

might have made the Hatfields and McCoys blush—the allegations ranged

from sexual assault and other domestic violence to taking bribes and leaving

a child to die in an unsafe home.

Although Haddock alleged that “all seven associate judges serve all

seven district judges,” it’s difficult to imagine a healthy working relationship

between Haddock and at least two of the judges, which, all else being equal,

makes her a less effective employee than an associate judge who can work

amicably with all seven. Haddock also alleges that Baca-Bennett’s role in the

dispute “undermine[d] respect for [Haddock’s] judicial authority,” which

presumably impacted Haddock’s effectiveness on the bench, even when

serving the remaining five judges.

Ultimately, although Haddock alleges she believed Newell otherwise

wished to retain her, she was left with the impression that he felt “she would

be difficult to keep despite her qualifications due to the political situation.”

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In short, the political dispute disrupted Tarrant County family court

operations, caused several of the elected district judges to lose faith in

Haddock’s ability to do her job, impeded Haddock’s ability to assert her

authority in court, and compromised her trustworthiness as an employee in

the eyes of at least two of the seven district judges she was duty-bound to

serve. The Elrod/Branti exception is not about labels like “policymaker” or

“confidential,” but about preventing precisely this type of disruption.

(3)

Finally, Haddock argues that some of the specific First Amendment

rights upon which she bases her claims cannot be subject to Elrod/Branti

analysis. Specifically, she argues that Elrod/Branti may apply to reprisals for

an employee who actively campaigns against her superior, but—because the

speech at issue was her husband’s, not her own (she, allegedly, refused to

campaign for or against anyone)—she is being punished for her association

with her spouse and for refusing to campaign. In other words, Haddock

argues that the First Amendment rights of intimate association and freedom

from compelled speech should not be subject to the Elrod/Branti exception.

Our precedent firmly establishes that Elrod/Branti applies to refusal

to speak. See, e.g., Stegmaier, 597 F.2d at 1030, 1040 (holding confidential

employee could be discharged for failing to support elected officeholder’s

candidacy under Elrod). A policymaker who refuses to endorse a winning

candidate may be discharged as readily as one who endorses a loser.

We also join the unanimous opinion of our sister Circuits in holding

that intimate association claims can be subjected to Elrod/Branti analysis.

See, e.g., Simasko v. Cnty. of St. Clair, 417 F.3d 559 (6th Cir. 2005); McCabe

v. Sharrett, 12 F.3d 1558, 1572 (11th Cir. 1994); Soderbeck v. Burnett Cnty., 752

F.2d 285 (7th Cir. 1985) (Posner, J.). There may be reason to doubt the

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effectiveness of either policymaking or confidential employees when they are

intimately associated with an elected official’s political opponents.

Haddock refused to endorse Munford and indicated that she would

take no action to curtail her husband’s campaigning. Her husband spent (or

was believed by Baca-Bennett to have spent) between $30,000 and $300,000

campaigning against Munford. Haddock’s husband appears to have

campaigned against Munford, at least in part, as a form of retaliation for

Munford’s wife’s campaign against Haddock. When a policymaker refuses

to endorse a candidate, her spouse spends or is believed to have spent a large

sum of money opposing the candidate, and there is reason to believe the

policymaker shares her spouse’s animosity based on personal history, it is

reasonable for an elected official to doubt the policymaker’s political loyalty.

See Soderbeck, 752 F.2d at 288 (“Mrs. Soderbeck was the political enemy of

her husband’s political enemy.”). As a policymaker, Haddock could be

terminated, under these circumstances, for her husband’s political activity

because the District Judges had reason to doubt that she was committed to

their policy agendas or judicial philosophies—that is, the agendas and

philosophies chosen by the voters.

The case is even stronger that a confidential employee may be

discharged for intimate associations that cause an elected official to question

the employee’s loyalty. In McCabe, the Eleventh Circuit held that an elected

police chief could demote his confidential secretary to a non-confidential

position because she was married to one of his officers. McCabe did not

involve any allegations that the plaintiff had campaigned against the new

police chief or had ever violated his trust. To the contrary, “[e]vidence

produced by both parties demonstrate[d]” that the plaintiff “actually

breached no confidences during the brief period she served as” the

defendant’s secretary, there was no reason to believe she had ever breached

the prior chief’s confidences, and the odds her ever doing so “may not have

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been overwhelming.” McCabe, 12 F.3d at 1572–73 & n.17. Nonetheless, her

job required her to have access to the chief’s confidential communications,

including communications about personnel complaints and officer discipline.

If there were a complaint against her husband or one of his colleagues, she

would see it first. The McCabe court reasoned that “[i]t is a matter of

common experience that spouses tend to possess a higher degree of loyalty

to their marital partners than to their superiors, and often discuss workplace

matters with one another, even matters that a superior has designated as

confidential.” Id. at 1572. The elected official was uncomfortable “having the

wife of an officer under [his] command function[ ] as [his] confidential

Executive Secretary,” for fear (based on nothing more than the fact of her

marriage to her husband) that her loyalty would be elsewhere, so he was

constitutionally permitted to demote her. Id.

Similarly, here, as a matter of common experience and the loyalty that

spouses (hopefully) feel toward one another, there is reason to believe that

Haddock’s loyalty would be to her husband first and to the District Judges

second. So long as this created no conflict, it was fine; when Haddock’s

husband became several judges’ fierce political enemy, it became a problem.

Consider, for example, the campaign allegation that Munford did not

adequately respect gun rights. Assume, hypothetically, that it’s true. Judges

have a great deal of discretion with respect to protective orders. The voters

chose Munford—and his judicial preferences. If, however, Munford wished

to circulate a memo to the associate judges indicating his preference that,

when he delegates a case to them, they exercise their discretion broadly in

favor of protective orders requiring litigants to surrender their firearms, he

would have to ask himself first whether he wanted to risk the memo ending

up in a campaign ad against him during the next election cycle. He would

have to consider that one of the associate judges was married to his political

enemy, and any preferences he expressed, in confidence, might be repeated

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to someone who was looking for ammunition to use against him in the next

election. A reasonable person in Munford’s position would question whether

he could confidentially discuss, develop, or express policy, philosophy, or

jurisprudential preferences to Haddock without undue personal risk.

The District Judges—Baca-Bennett and Munford especially—had

reason to doubt that they could trust Haddock with confidential policy-

related materials or conversations. They had reason to doubt that she agreed

with their policy preferences, because her husband had campaigned against

Munford, in part, on policy grounds, and she had refused to attempt to curtail

his campaigning or take a position herself. That Haddock alleges she had not

violated any confidences or knowingly gone against any district judge’s policy

preferences is of no moment “because we do not require employers to wait

until their office is disrupted before taking action.” Garza, 972 F.3d at 732.

Haddock was in a policymaking and confidential role, and, under the

Elrod/Branti exception, could constitutionally be discharged for the exercise

of rights that would otherwise by protected by the First Amendment.

B.

Haddock alleges that the district court erred by dismissing her claims

against Tarrant County. Although Tarrant County, as a municipal entity, can

be held liable under § 1983 when an “action pursuant to official municipal

policy of some nature caused a constitutional tort,” it “cannot be held liable

under § 1983 on a respondeat superior theory.” Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 691 (1978). For municipal liability to attach, a plaintiff must

prove “three elements: a policymaker; an official policy; and a violation of

constitutional rights whose moving force is the policy or custom.” Zarnow v.

City of Wichita Falls, 614 F.3d 161, 166 (5th Cir. 2010) (quoting Piotrowski v.

City of Hous., 237 F.3d 567, 578 (5th Cir. 2001)).

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No. 19-11327

As explained above, because the Elrod/Branti exception applies to

Haddock’s claims, she has failed to plead a constitutional violation. We

therefore do not need to examine whether she has pled a county policymaker

or official policy. The district court correctly dismissed Haddock’s claims

against Tarrant County.

C.

Haddock also takes issue with the district court’s holding that Baca-

Bennett has qualified immunity. “Qualified immunity shields federal and

state officials from money damages unless a plaintiff pleads facts showing (1)

that the official violated a statutory or constitutional right, and (2) that the

right was clearly established at the time of the challenged conduct.” Ashcroft

v. al-Kidd, 563 U.S. 731, 735 (2011) (cleaned up). These questions can be

answered in either order. Pearson v. Callahan, 555 U.S. 223, 242 (2009).

As explained above, Baca-Bennett did not violate Haddock’s

constitutional rights; this is enough for Baca-Bennett to be entitled to

qualified immunity. Even if Haddock’s rights had been violated, however,

Baca-Bennett certainly did not have “fair warning that [her] conduct

violate[d] a constitutional right.” Clarkston v. White, 943 F.3d 988, 993 (5th

Cir. 2019) (quoting Delaughter v. Woodall, 909 F.3d 130, 140 (5th Cir. 2018)).

Closely on-point authority from our sister Circuits indicated that the

Elrod/Branti exception applies to positions very much like Haddock’s. See,

e.g., Mumford, 105 F.3d 264. The case that Haddock primarily relies on for

the proposition that judges are categorically not policymakers was (1) decided

in another Circuit (2) after Haddock’s termination and (3) was reversed by

the Supreme Court. See Adams, 141 S. Ct. 493. Baca-Bennett is entitled to

qualified immunity.

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IV. Conclusion

The district court correctly held that Haddock, as both a policymaker

and a confidential employee, was subject to the Elrod/Branti exception, and

had therefore failed to allege a constitutional violation.

AFFIRMED.

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No. 19-11327

James C. Ho, Circuit Judge, concurring in the judgment:

I concur in the judgment and agree with much of what Judge Clement

writes in her typically thoughtful opinion. I write separately to make just one

observation. As Judge Clement explains, the plaintiff in this case should be

afforded the same constitutional status as those that our court and other

courts have previously regarded as “confidential employees” under the First

Amendment. See, e.g., Garza v. Escobar, 972 F.3d 721, 731 (5th Cir. 2020)

(holding that a Crime Victims Unit Coordinator was a confidential

employee); Gentry v. Lowndes Cnty., 337 F.3d 481, 488 (5th Cir. 2003)

(holding that a road manager and county administrator occupied confidential

positions because the county board of supervisors “must be assured of the

trust and loyalty of the road manager and administrator and must be able to

assume the confidentiality, when necessary, of their mutual dealings”);

Kinsey v. Salado Indep. Sch. Dist., 950 F.2d 988, 996 (5th Cir. 1992) (holding

that a school superintendent “occupied a confidential relationship” with the

school board because he was the custodian of the school’s confidential

records and advised the board on confidential matters); Soderstrum v. Town

of Grand Isle, 925 F.2d 135, 141 (5th Cir. 1991) (holding that a police chief’s

secretary was a confidential employee); Stegmaier v. Trammell, 597 F.2d

1027, 1040 (5th Cir. 1979) (holding that a deputy circuit clerk was a

confidential employee). See also, e.g., Mumford v. Basinski, 105 F.3d 264, 272

(6th Cir. 1997) (“Unquestionably, the inherent duties of an Ohio domestic

relations court referee entail a relationship of confidence between the referee

and the judge(s) which he serves.”). It is on that basis that I would affirm.

Accordingly, I concur in the judgment.

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