stating appellee’s collateral-estoppel argument was properly before the court where appel-lee raised the issue in its motion for summary judgment, even though district court relied on alternative ground
How later courts described this case
- stating appellee’s collateral-estoppel argument was properly before the court where appel-lee raised the issue in its motion for summary judgment, even though district court relied on alternative ground
- any grounds asserted before the district court may justify upholding its decision on appeal
Written by the judges who cited it.
The opinion
LIVELY, Chief Judge,
dissenting.
Since I believe the majority has seriously misapplied an important rule of law, I respectfully dissent.
A.
The majority concludes that there was insufficient evidence that- Pilarowski’s “First Amendment activities were established as a cause of his termination by the Macomb County Commissioners.” Ante p. 1284. However, that was not the basis of the district court’s granting the defendants’ motion for judgment notwithstanding the verdict. The district court specifically found that there was sufficient evidence “to support the conclusion that defendants’ argument that plaintiff was placed on indefinite layoff due to a budget deficit was pretextual and that plaintiff would not have been fired but for his letter writing activities.” Joint Appendix at 209E. The motion for judgment notwithstanding the verdict was granted because the plaintiff chose to sue only the county rather than individual members of the Board of Commissioners or Health Department and, in doing so, failed to “identify the existence of a governmental policy and connect that policy to the particular injuries which he suffered.” Id. This statement identified a requirement for maintaining an action against a municipality under section 1983. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694 , 98 S.Ct. 2018, 2037 , 56 L.Ed.2d 611 (1978). However, I believe the district court and the majority have misapplied the Monell “policy or custom” requirement in this case.
B.
In Monell the Supreme Court overruled Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961), insofar as it held that local governments are not among the “persons” to which 42 U.S.C. § 1983 applies. In holding that municipalities may be sued directly under § 1983 the Monell Court limited liability to those situations where a local government acts pursuant to “official policy” or governmental “custom.” It made clear, however, that a “custom” need not have received formal approval of the decision-making authority of the municipality. On the other hand, the Supreme Court determined that a local government may not be held liable under § 1983 based on a respondeat superior theory for simply having an employee who commits a wrong. Id., 436 U.S. at 690-95 , 98 S.Ct. at 2035-38 . The Court stated in Monell that it did not address “what the full contours of municipal liability under § 1983 may be.” Id. at 695, 98 S.Ct. at 2038 .
The Supreme Court has continued to explore the contours of municipal liability since Monell. E.g., Owen v. City of Independence, 445 U.S. 622 , 100 S.Ct. 1398 , 63 L.Ed.2d 673 (1980) (an action of city council rendered municipality liable); City of Newport v. Fact Concerts, Inc., 453 U.S. 247 , 101 S.Ct. 2748 , 69 L.Ed.2d 616 (1981) (same); Oklahoma City v. Tuttle, 471 U.S. 808 , 105 S.Ct. 2427 , 85 L.Ed.2d 791 (1985) (existence of municipal policy of inadequate training may not be inferred from misconduct of a single police officer); Pembaur v. *1288 City of Cincinnati, 475 U.S. 469 , 106 S.Ct. 1292 , 89 L.Ed.2d 452 (1986) (municipality may be liable for single act taken subject to a course of action directed by those who establish governmental policy). The consistent theme through all decisions since Monell is that municipal liability under § 1983 attaches only to acts of a municipality as distinguished from acts of municipal employees. Liability does not require a formal act of the governing body of the municipality; it may be based on actions of other officials “whose acts or edicts may fairly be said to represent official policy.” Pembaur, 106 S.Ct. at 1298-99 , quoting Monell, 436 U.S. at 694 , 98 S.Ct. at 2037 .
The district court misapplied Monell and its progeny in this case. Pilarowski was terminated pursuant to an action of the ultimate governing authority of Macomb County, its Board of Commissioners. There could be no doubt that this was an act of the county, not that of an employee. Liability did not depend upon a finding that the county had adopted a policy of suppressing free speech. Only four members of the Court in Pembaur agreed on the authority that a “policymaker” must possess when municipal liability is predicated on the single act of such an official. However, six Justices agreed to this statement:
No one has ever doubted, for instance, that a municipality may be liable under § 1983 for a single decision by its properly constituted legislative body — whether or not that body had taken similar action in the past or intended to do so in the future — because even a single decision by such a body unquestionably constitutes an act of official government policy.
106 S.Ct. at 1298 (citations omitted). Pembaur teaches that the acts of a properly constituted legislative body necessarily reflect official government policy. It is only when an alleged constitutional violation is caused by the conduct of a municipal employee that a separate inquiry into the existence of a municipal policy or custom is necessary in order to determine whether the act of the employee can be properly attributed to the municipality itself. Under this test, the single act of the Macomb County Board of Commissioners “unquestionably constitute^] an act of official government policy.”
The district court erred in requiring plaintiff to demonstrate the existence of an unconstitutional custom or policy where the claimed deprivation of First Amendment rights was based on an act of the legislative body of the county. This case is similar in many respects to Williams v. City of Valdosta, 689 F.2d 964 (11th Cir.1982), where the court reversed the district court’s entry of judgment notwithstanding the verdict. In Williams the court of appeals applied Monell in a manner that anticipated the Supreme Court’s decision in Pembaur .
Since I believe that the district court’s erroneous view of Monell was the sole basis for granting the defendants’ motion for judgment notwithstanding the verdict, I would reverse the judgment of the district court and remand with directions to reinstate the verdict unless that court determines, upon reexamination of the issue, that it erroneously denied the defendants’ motion for summary judgment on collateral estoppel grounds.