Haddock v. Tarrant

Case: 19-11327 Document: 00515867354 Page: 1 Date Filed: 05/18/2021

REVISED

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

May 18, 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:*

*

Pursuant to 5th Circuit Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5th Circuit Rule 47.5.4.

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We withdraw our prior opinion in this case and substitute this

revision. 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

Haddock was both a policymaking and confidential employee lawfully subject

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

AFFIRM.1

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.2 Munford’s wife allegedly repeated these harsh allegations

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

1

Judge Ho concurs in the judgment.

2

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

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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

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.”3

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

3

We express no opinion whether these allegations against Baca-Bennett, if

true, violate Texas’s Code of Judicial Conduct. See Tex. Gov’t Code Ann.,

tit. 2 subtit. G app., Canons 2B, 3C(1), 5(2).

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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.

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.

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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

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

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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

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 was 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

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

a policymaker.’” Garza v. Escobar, 972 F.3d 721, 729 (5th Cir. 2020) (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

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

serve[ ].” Mumford v. Basinski, 105 F.3d 264, 272 (6th Cir. 1997). 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

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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

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

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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.”

In short, Haddock was a confidential employee to all seven district judges due

to the close and personal working relationships associate judges have with the

district judges. The district judges were free to terminate Haddock’s

employment in connection with a political dispute that disrupted Tarrant

County family court operations. See Simasko v. Cnty. of St. Clair, 417 F.3d

559, 562–63 (6th Cir. 2005) (holding that a confidential employee may

lawfully be terminated for remaining neutral in his supervisor’s campaign and

refusing to try to curtail his brother’s public support for his supervisor’s

opponent “however misguided and vindictive that action may” be). The

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

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

Thus, we hold that Haddock was a confidential employee under

Elrod/Branti.4

(2)

Next, Haddock argues that some of the specific First Amendment

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

4

We need not address whether Haddock was also a policymaker under the

Elrod/Branti exception because we hold that she was a confidential employee.

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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 v. Trammell, 597 F.2d 1027, 1040 (5th Cir. 1979),

(holding confidential employee could be discharged for failing to support

elected officeholder’s candidacy under Elrod). 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.),

and extend our own precedent holding that a confidential employee may be

terminated for personal and political associations, see Soderstrum v. Town of

Grand Isle, 925 F.2d 135 (5th Cir. 1991), to the intimate association context.

We must address two key distinctions between the present case and

Soderstrum. First, in Soderstrum the plaintiff had “unambiguously expressed

her lack of confidence in the incoming official and her unwillingness to work

in the new administration.” 925 F.2d at 141. Here, at least per Haddock’s

allegations, Haddock had expressed no such unwillingness or opposition.

This distinction, while interesting, is not crucial. The dispositive fact in

Soderstrum was that the plaintiff “served in a position of confidence requiring

complete loyalty to the police chief,” and that the newly elected chief

doubted her loyalty—that she had explicitly given him reason to doubt her

loyalty (beyond her association with the outgoing police chief) merely

reinforced the point that the defendant’s doubts were reasonable. Id. at 140.

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Second, the association at issue in Soderstrum was a personal and

political relationship. Here, Haddock alleges that she was fired for intimate

association with her spouse, which she argues should be a more carefully

protected relationship. We need not decide the quantum of difference, if any,

between the protections afforded different types of relationships because we

join every other Circuit to have considered the issue in holding that

Elrod/Branti also applies to intimate association claims. The Eleventh

Circuit’s opinion in McCabe v. Sherrett is instructive.

The McCabe court 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 of her ever doing so

“may not have 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.

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Similarly, there is no evidence that Haddock had ever breached the

District Judges’ confidence or prioritized her loyalty to her husband over her

duty of confidentiality as an associate judge. We engage in no presumption

that she was likely to do so. See Tex. Gov’t Code Ann., tit. 2, subtit. G

app., Canon 2B (“A judge shall not allow any relationship to influence

judicial conduct or judgment.”). However, we recognize that, as “a matter

of common experience,” McCabe, 12 F.3d at 1572, it was not unreasonable

for the District Judges to worry that spousal loyalty might interfere with their

ability to “expect, without question, undivided loyalty” from their

confidential employee, Stegmaier, 597 F.2d at 1040. Combined with the fact

that “we do not require employers to wait until their office is disrupted before

taking action,” that the District Judges lost confidence in Haddock’s

undivided loyalty—even in the absence of any breach of trust by Haddock—

is sufficient for them constitutionally to terminate her employment. Garza,

972 F.3d at 732.

By the nature of the spousal relationship, an elected official may

reasonably worry that they will not receive the undivided loyalty to which

they are entitled from their confidential employees, so we recognize that the

Elrod/Branti exception may extend to intimate association claims. Haddock

was in a 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.5

5

To the extent we have not explicitly addressed any of Haddock’s claims,

such as her freedom of petition claim based on filing this suit, our holding that she

is a confidential employee suffices to affirm dismissal of all Haddock’s First

Amendment claims.

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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)).

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

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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. Baca-Bennett is entitled to qualified immunity.

IV. Conclusion

The district court correctly held that Haddock, as a confidential

employee, was subject to the Elrod/Branti exception, and had therefore failed

to allege a constitutional violation.

AFFIRMED.

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