# Haddock v. Tarrant Cty

> Court of Appeals for the Fifth Circuit · February 1, 2021 · 986 F.3d 893

URL: https://www.frixlaw.com/law-library/cases/4656335

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** February 1, 2021
- **Citations:** 986 F.3d 893
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Civil Rights
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- holding that a police chief’s secretary was a confidential employee
- holding that a deputy circuit clerk was a confidential employee

## Opinion text

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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No. 19-11327

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4656335. Public record. Not legal advice.