applying Pray analysis to the question of whether a reasonable official “could have believed” that the positions at issue were such that “the law entitled her to take political compatibility into account when deciding whom to retain”
How later courts described this case
- applying Pray analysis to the question of whether a reasonable official “could have believed” that the positions at issue were such that “the law entitled her to take political compatibility into account when deciding whom to retain”
- noting that for purposes of qualified immunity analysis, the issue must be stated “at a relatively high level of specificity” in light of the circumstances of the case
- “For qualified immunity to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.” (citations omitted)
- "Although decisions of other courts can clearly establish the law, such decisions must both point unmistakenly to the unconstitutionality of the conduct and be so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct was unconstitutional.”
Written by the judges who cited it.
The opinion
COHN, District Judge,
dissenting.
I dissent. As stated by the district court:
Plaintiffs[’] conduct in choosing to support political candidates other than Defendant constitutes constitutionally protected conduct. As decided above, Defendant has not demonstrated that party affiliation is an “appropriate” requirement for all sixteen deputy clerk positions. Furthermore, based upon the above case law, 1 other County Clerks in Defendant’s position would have clearly understood that they were under an affirmative duty to refrain from taking such adverse employment action against public employees because of political association or expression. Therefore, “assuming arguendo, that political affiliation was a ‘substantial’ or ‘motivating’ factor in Defendant Heltsley’s decision not to rehire the Plaintiffs,” she is not entitled to qualified immunity for that conduct.
The memorandum from the Kentucky Secretary of State notified defendant of the decision in Rutan v. Republican Party of Illinois, 497 U.S. 62 , 110 S.Ct. 2729 , 111 L.Ed.2d 52 (1990), stating that “[t]he ruling issued means that elected officials, with few exceptions, cannot use political activity or support of a particular candidate as a basis to retain or not retain a worker or as the basis for hiring new workers.” The memorandum also warned: “It is possible that candidates who seek' office with .an extensive slate of deputies could run the risk of being sued for improper hiring decisions.” If nothing else, the memorandum put defendant on clear notice that if she wanted to reorganize her staff, political consideration should not play a *462 part. The fact that defendant may have ignored the caution because Kentucky politics traditionally supported a “to the victor belong the spoils” 2 standard of conduct for newly elected officials is no reason to give defendant immunity from a claim of First Amendment violation in the circumstances of this case.
. The district court’s references are to Rutan v. Republican Party of Illinois, 497 U.S. 62, 79 , 110 S.Ct. 2729, 2739 , 111 L.Ed.2d 52 (1990) (extending Elrod and Branti to decisions to transfer, promote, recall, or hire employees solely because of political association); Branti v. Finkel, 445 U.S. 507, 519-20 , 100 S.Ct. 1287, 1295-96 , 63 L.Ed.2d 574 (1980) (preventing a newly appointed public defender who was a Democrat from discharging assistant public defenders because they did not have the support of the Democratic Party); Elrod v. Burns, 427 U.S. 347, 351, 372-73 , 96 S.Ct. 2673, 2689-90 , 49 L.Ed.2d 547 (1976) (declaring it unconstitutional for a newly elected Democratic sheriff to replace certain non-civil service employees "because they did not support and were not members of the Democratic Party and had failed to obtain the sponsorship of one of its leaders”); Conklin v. Lovely, 834 F.2d 543 (6th Cir.1987) (upholding a verdict in favor of a deputy county clerk, who was discharged for political activity).
. Such is how New York Governor William Learned Marcy described President Andrew Jackson's use of patronage. See Martin Tolchin & Susan Tolchin, To the Victor ... 323 (1971).