Opposition Brief — Mineer v. Fleming County

No. 93-628

—s

In The

Supreme Court of the United States

October Term, 1993

— *

WILLIAM MINEER,

Petitioner

versus

FLEMING COUNTY, KENTUCKY; FLEMING COUNTY

FISCAL COURT; JEWELL CALL, Fleming County

Judge/Executive, in his official and individual

capacity; and the FLEMING COUNTY FISCAL COURT

MEMBERS, Gary C. Harmon, Andy Cole, John Sims,

Ronnie Carpenter, William Thompson, and L.C. Cord,

in their official and individual capacities,

Respondents.

o-—

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

e a

RESPONDENTS’ BRIEF IN OPPOSITION

- +

C. THomMaAs Hectus

Counsel of Record

WILLIAMS & WAGONER

R. THADDEUS KeEat

One Oxmoor Place

101 Bullitt Lane, Suite 202

Louisville, KY 40222

(502) 429-5700

(x ear LAW a PRINTIN ), (800) 225-6964

R CALI W LECT 40 42-2431

QUESTION PRESENTED FOR REVIEW

1. Whether, in view of public policy and deeply

rooted historical tradition, this Court should reconsider

and overrule Rutan v. Republican Party of Illinois?

ail ae ane St — lei — a Se ee ES EE

il )

TABLE OF CONTENTS

Page i

QUESTION PRESENTED FOR REVIEW ......... Wren

TABLE OF AU THAI ee fs isos cccensesteesivaeee ili

TER FT oe hee de e4et Kae Pee ee 2

STATEMENT OF THE CAGG) soccce vs sseteareens a

REASONS FOR DENYING THE WRIT............. 14

i. The Opinion of the United States Court of

Appeals Granting Qualified Immunity to

Judge/Executive Call Relied Upon Estab-

lished Precedent of this Court .............. 14

Il. The Opinion of the Sixth Circuit Court of

Appeals Correctly Granted the Members of

the Fiscal Court Qualified Immunity as to

Petitioner’s Fourteenth Amendment Due Pro-

cess and First Amendment Claims, Since the

Magistrates Had No Authority to Act Under

Kentucky Law and Further, Because Petitioner

Had No Property Interest Under State Law

Protecting His Right to Continued Employ-

| | SPP eee eee eee frre ree tee 17

II. Public Policy and Tradition Support Party

Affiliation as a Valid Basis for Employment

Decisions by Public Officials................ 19

CAFC ULI on pepe here ad eae eeeg eee 24

8 8 Oe ee 8 OF Fe

lil

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Creighton, 483 U.S. 635, 97 L.Ed.2d 523,

ed ieee ules weeuwbas 14

Bowers v. Hardwick, 478 U.S. 186, 92 L.Ed.2d 140,

el one ealee sc aeeurs 22

Branti v. Finkel, 445 U.S. 507, 63 L.Ed.2d 574, 100

eo ae alee banal 13, 15

Broadrick v. Oklahoma, 413 U.S. 601, 37 L.Ed.2d 830,

De ee ee oa be bee ok 20, 21

Brown v. Glines, 444 U.S. 348, 62 L.Ed.2d 540, 100

ITS EEA aa a 22

Burnham v. Superior Court of California, County of

Marin, 495 U.S. 604, 109 L.Ed.2d 631, 110 S.Ct.

ee aoe Sin he ain alate G 22

CSC+v. Letter Carriers, 413 U.S. 548, 37 L.Ed.2d 796,

Ne eee eee ieee ck 20

Cafeteria and Restaurant Workers v. McElroy, 367

U.S. 886, 6 L.Ed.2d 1230, 81 S.Ct. 1743 (1961)..... 21

Cagle v. Gilley, 957 F.2d 1347 (6th Cir. 1992)... 13, 15

Camara v. Municipal Court of San Francisco, 387 U.S.

523, 18 L.Ed.2d 930, 87 S.Ct. 1727 (1967).......... 22

Christian v. Belcher, 888 F.2d 410 (6th Cir. 1989) ...... 4,18

Connick v. Myers, 461 U.S. 138, 75 L.Ed.2d 708, 103

I, a 5s Ok 4) bo as & wa ely's 6 ww ok ole aa ee

Elrod v. Burns, 427 U.S. 347, 49 L.Ed.2d 547, 96

ar ence cel ba 2 ak oe 8 ee te 20, 23

On ee

[ABLE OF AUTHORITIES — Continued

Firestone Textile Company Dtvision v. Meadows, Ky.,

ee i kG” | a 5

Guercio v. Brody, 911 F.2d 1179 (6th Cir. 1990), cert.

denied, U.S. » BEE DAE. FORE CPPS) 6 x vc kee 1]

Harlow v. Fitzgerald, 457 U.S. 800, 73 L.Ed.2d 396,

SO? SAA, Zeer Come oss nso ees eee ee ieee ae 14

Kelley v. Johnson, 425 U.S. 238, 47 L.Ed.2d 708, 96

SAS. GORD Cores bio ncc vectra eee ae 20, 21

Minnitefteld v. State of Alabama, 542 F.2d 947 (5th

C38; SOR a vuicka a ae ee ods eae ee Ree eR se 4

Monks v. Marlinga, 923 F.2d 423 (6th Cir. 1991)...... 13

’Connor v. Ortega, 480 U.S. 709, 94 L.Ed.2d 714,

SOT SAN. BORE COWIE os opener eet eced pi sete ines 20

Public Workers v. Mitchell, 330 U.S. 75, 91 L.Ed.2d

Fan, GF SAK. Se Ci hoe dc dss bcernakeneeel 20, 22

Rutan v. Republican Party of Illinois, 497 U.S. 62, 111

L.Ed.2a 52, 130 SOL Zeer Ceres asc eee ce eess 15, 19

Upton v. Thompson, 930 F.2d 1209 (7th Cir. 1991). .... 16

Williams v. City of River Rouge, 909 F.2d 151 (6th

Cie. FOGG? 6 scccvvewas ee ended eee eee Eee 13

Wirth Ltd. v. S/S. Acadia Forest, 537 F.2d 1272 (5th

Ce. FD sei Sie Oe ee Se 4

STATUTES:

ee G77 EE ek o ccces ce dade ee acae ree 5, 18

A? ETP «ened sca ae ARs Dee T Ree 18

KS

IABLI

179 .020(2)

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*4

Al

~s “wap °<

PHORITIES

Continued

No. 93-628

— oo eee .

In The

Supreme Court of the United States

October Term, 1993

eS + a

WILLIAM MINEER,

Petitioner,

versus

FLEMING COUNTY, KENTUCKY; FLEMING COUNTY

FISCAL COURT; JEWELL CALL, Fleming County

Judge/Executive, in his official and individual

capacity; and the FLEMING COUNTY FISCAL COURT

MEMBERS, Gary C. Harmon, Andy Cole, John Sims,

Ronnie Carpenter, William Thompson, and L.C. Cord,

in their official and individual capacities,

Respondents.

ee = SS

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

— .

RESPONDENTS’ BRIEF IN OPPOSITION

+

The Respondents respectfully request that this Court

deny the Petition for Writ of Certiorari, seeking review of

the Opinion of the United States Court of Appeals for the

Sixth Circuit entered on May 4, 1993.

— .

JURISDICTION

This Court does not have jurisdiction to consider the

Petition for Writ of Certiorari herein. The Opinion of the

United States Court of Appeals for the Sixth Circuit was

entered on May 4, 1993. (See Petitioner’s Appendix A to

Petition for Writ of Certiorari, hereafter “Petitioner’s

Appendix,” p. la). Neither Petitioner nor Respondents

filed a Petition for Rehearing in the Sixth Circuit Court of

Appeals. The 90 days within which Petitioner had to file

his Petition for Writ of Certiorari expired on August 2,

1993. Even if a Justice of this Court, for good cause

shown, had extended the time to file a Petition for Writ of

Certiorari for a period not exceeding 60 days, Petitioner

would have had to file his Petition no later than October

1, 1993.

Petitioner attempts to disguise his Petition with the

cloak of timeliness by suggesting that the “Final Opinion

and Order” of the sixth circuit was entered on September

3, 1993. [Petition for Writ of Certiorari, “Jurisdiction,” p.

2]. What Petitioner erroneously refers to as the Final

Opinion of the court of appeals was actually an Order,

and was not even entered in the case from which Peti-

tioner now seeks a Writ of Certiorari.

After the Opinion of the Sixth Circuit Court of

Appeals was entered on May 4, 1993, the district court

did not enforce the mandate of the sixth circuit as to

County Judge/Executive Jewell Call, hereafter “Call”.

Consequently, only Call filed a Petition seeking a Writ of

Mandamus directing the district court to enforce the sixth

circuit’s mandate. {Jn re: Jewell Call, individually and in his

official capacity as Fleming County Judge/Executive, Sixth

Circuit Docket No. 93-6046, Respondents’ Appendix A, p.

1]. Call correctly ascertained the Opinion of the sixth

circuit which had reversed the denial of qualified immu-

nity to him on both Petitioner’s First Amendment and

Fourteenth Amendment due process claims.! The district

court did not respond to Call’s Petition for Writ of Man-

damus. Thereafter, on September 3, 1993, the sixth circuit

entered an Order directing the district court to take all

appropriate steps to enforce its mandate, per its Opinion of

May 4, 1993, and ordered the Petition for Writ of Man-

damus dismissed. (See Petitioner’s Appendix B, pp.

29a-3l1a).

There is no authority, either in the United States

Code, the Rules of this Court, or in the case law which

would allow an automatic extension of time in which to

file a Petition for Writ of Certiorari from a final opinion of

a federal court of appeals simply because the Petitioner

misunderstood the import of the decision of the court of

appeals. Even Petitioner must readily concede that only

one member of the sixth circuit panel, Judge Churchill,

was of the opinion that Call was not entitled to qualified

immunity. Judge Churchill’s opinion could not be under-

stood to have been the Opinion of the Court. 28 U.S.C.

§ 46(d) provides that “[a] majority of the number of

judges authorized to constitute a court or panel thereof,

as provided in paragraph (c), shall constitute a quorum.”

1 In its May 4, 1993 Opinion, the sixth circuit noted that

Petitioner had abandoned his Fifth Amendment claims noting

that Petitioner “does not explain how the Fifth Amendment was

implicated.” (See Petitioner’s Appendix A, p. 4a, n.1). Likewise,

Petitioner has failed to raise any Fifth Amendment claims in his

Petition for Writ of Certiorari.

In other words, two of three judges constitute a quorum.

Minniefield v. State of Alabama, 542 F.2d 947 (5th Cir. 1976);

Wirth Ltd. v. S/S Acadia Forest, 537 F.2d 1272 (5th Cir.

1976). With respect to Call, two members, or a quorum, of

the panel voted in favor of qualified immunity. There

simply can be no reasonable disagreement that two votes

of a three-member panel are sufficient to prevail.

In any event, assuming this Court were to relax the

statutes and rules governing its jurisdiction, Petitioner

cannot offer his own “confusion” about the Opinion of

the sixth circuit to suggest that his Petition, as it relates to

the Respondent Magistrates, is timely. All three of the

panel members of the sixth circuit concurred in their

Opinion of May 4, 1993 that the Magistrates were entitled

to qualified immunity on both Petitioner’s First Amend-

ment and due process claims. By failure to file a timely

Petition, certainly Petitioner has waived further review of

the grant of qualified immunity to the Respondent Magi-

strates.

STATEMENT OF THE CASE

The Petitioner’s Statement of the Case omits key facts

which support the legal grounds upon which the Sixth

Circuit Court of Appeals based its Opinion.

Respondents herin collectively constitute the govern-

ing body of Fleming County, Kentucky. Respondent Jew-

ell Call is the Chief Executive Officer, known as the

County Judge/Executive. Respondents, Harmon, Cole,

Sims, Carpenter, Thompson and Cord are the elected

members, known as Magistrates, who comprise the Fiscal

Court of Fleming County.

Under Kentucky law, a County Jude/Executive

must nominate prospective employees to the Fiscal Court.

Thereafter, with the consent of a majority of the Fiscal

Court, the person nominated is employed.

Petitioner had been employed as the Fleming County

Road Supervisor. The Road Supervisor’s employment is

governed by Kentucky Revised Statute (KRS) 179.020(2),

which provides that the County Road Supervisor “shall

be employed by the County Judge/Executive with the

consent of the Fiscal Court and who may be removed in

the same manner provided for county road engineers.”

Importantly, Kentucky law also provides that the tenure

of county employees cannot extend beyond the tenure of

the members of the Fiscal Court which appoints them.2

Once his lawful term had expired, Petitioner became an

employee at will who could be terminated for good

cause, for no cause, or for a cause that some might view

as morally indefensible.3

Petitioner's employment history as the Fleming

County Road Supervisor is significant, as it relates to

both Petitioner’s First Amendment and Fourteenth

Amendment due process claims. Petitioner was nomi-

nated by former Fleming County Judge/Executive, Bill

Owens, in 1978, and approved by the Fiscal Court. As

KRS 179.020(7) allowed employment of a County Road

Supervisor for a term of either two or four years in the

* KRS 67.710(7); Opinion of the Attorney General 78-432;

Christian v. Belcher, 888 F.2d 410 (6th Cir. 1989).

* Firestone Textile Company Division v. Meadows, Ky., 666

S.W.2d 730, 731 (1984).

discretion of the Fiscal Court, Petitioner was initially

appointed to a four-year term, expiring at the end of

December, 1981 (coincident with the expiration of the

term of the appointing Fiscal Court). In January, 1982,

Judge Owens renominated Petitioner as Road Supervisor.

The Fiscal Court again approved the nomination for

another four years (again, coincident with the term of

office of the appointing Fiscal Court).

In January, 1986, Judge Owens once more nominated

Petitioner to the Fiscal Court for approval as Road Super-

visor. This time, however, the Magistrates voted 5-1

against his reappointment. Petitioner continued to hold

the position, albeit unlawfully, as Road Supervisor. In

February, 1986, Judge Owens again nominated Petitioner,

and the Fiscal Court again voted against him 5-1. None-

theless, Petitioner continued to work as Fleming County

Road Supervisor until September, 1986, when the Fiscal

Court voted 3-3 on Petitioner’s nomination by Owens.

Since Judge Owens was qualified to vote in the event of a

tie, Owens broke the tie with his own vote for Petitioner.

Petitioner was then appointed to a two-year term (rather

than the four-year terms to which he had previously been

appointed), which retroactively began in January, 1986,

and expired in January, 1988. In January, 1988, Judge

Owens failed to submit Petitioner’s name to the Fiscal

Court for approval, as required by Kentucky law. Even

though he had no lawful appointment, Petitioner contin-

ued to work as Fleming County Road Supervisor. In May,

1989, Judge Owens lost the primary election for County

Judge/Executive to Respondent Call. Several months

thereafter, while still in office, Owens once again nomi-

nated Petitioner to the Fiscal Court for the position of

County Road Supervisor. Two of the six Magistrates had

also lost their primary elections, and along with Judge

Owens, would be completing their term of office in

December, 1989. Nonetheless, the Magistrates not only

approved the nomination, but voted for a four-year term,

knowing that the appointment would exceed their own

terms of office, an apparent violation of Kentucky law. In

fact, the Fleming County Attorney, Frank McCartney,

advised the Fiscal Court at that time that, even though

they had voted on a four-year term for Petitioner, Peti-

tioner’s employment would expire after two years, in

January, 1990, because one Fiscal Court could not bind

the next. In September, 1989, one month after he had been

nominated by a lame duck Judge/Executive and

approved by at least two lame duck Magistrates, Peti-

tioner decided to run as a write-in candidate against

Judge Call for the position of Judge/Executive. Petitioner

requested a leave of absence from October 4, 1989

through November 7, 1989 to conduct his campaign.

McCartney advised Petitioner that he had written the

Attorney General of the Commonwealth of Kentucky,

requesting an opinion as to whether a Road Supervisor

could run for Judge/Executive while on personal leave of

absence from county employment. In October, 1989, the

Attorney General’s office advised McCartney that the

Road Supervisor would have to resign before he could

run for county office. 7

In January, 1990, the newly elected Fiscal court voted

not to ratify the action of the former Fiscal Court, which

had supposedly appointed Petitioner to a four-year term,

which exceeded the term of the appointing authority.

The evidence adduced of record well supported the

consideration of political affiliation in hiring the Road

Supervisor. Fleming County, Kentucky is a rural, agri-

cultural community. The Road Supervisor reports directly

to the County Judge/Executive, makes recommendations

to the Fiscal Court about the most economic utilization of

county road funds, is responsible for the daily supervi-

sion of the Road Department, is authorized to sign pur-

chase orders that would obligate the county, has the

authority to authorize overtime for Road Department

employees, makes decisions with respect to the priority

of work to be done in the county, and makes recommen-

dations to the County Judge/Executive regarding wages

and salaries for Road Department employees. Respon-

dent Cord testified that the construction and repair of

county roads was the top priority of county government.

Respondent Thompson testified that road construction,

repair and maintenance is the main function of Fleming

County government. Respondent Call was of like opin-

ion.

Further, without regard to politics, there were many

instances of dissatisfaction with the manner in which

Petitioner was performing his job as Road Supervisor

(apparently, dating back to January 1986, when Judge

Owens’ third nomination of Petitioner was soundly de-

feated, some three years before Call ran for office in the

primary election). There were complaints that Petitioner

could not control the men he supervised, that Petitioner

would not go on jobs with his employees, that Peti-

tioner’s whereabouts were unknown on days he should

have been working, and that Petitioner did not respond

to requests of Fiscal Court members. For most of the time

Petitioner was Road Supervisor, jobs would not be com-

pleted, or when completed, were done improperly and

inefficiently.

Due to the number of complaints about Petitioner,

and because of the extensive contact that the Road Super-

visor has with the public in Fleming County, Call decided

to nominate his own appointee after Fiscal Court voted

not to ratify Petitioner’s four-year term. Call wanted to

appoint someone who could effectively carry out his poli-

cies as County Judge/Executive.

Petitioner admitted he knew that a county employee

had a right to a hearing when terminated. Nonetheless,

Petitioner admitted he never sought a hearing, review or

appeal of the Fiscal Court's decision not to ratify his term

of employment.

Procedural History

Petitioner commenced his lawsuit in the United

States District Court for the Eastern District of Kentucky

claiming damages for alleged constitutional violations.

His complaint also included pendent state law claims.

The district court granted the Magistrates’ Motion for

Summary Judgment as to Petitioner’s First Amendment

claims and state law wrongful discharge claims, holding

that the Respondent Magistrates had no authority to

appoint or re-appoint county employees such as Peti-

tioner, absent nomination by the County Judge/Execu-

tive. The district court denied the Magistrates’ Motion for

Summary Judgment on Petitioner’s due process claims,

—————

10

believing that there was a material issue of fact whether

Petitioner had an expectation of continued employment.

With respect to Respondent Call, the district court

denied his Motions for Summary Judgment as to both the

First Amendment and Fourteenth Amendment due pro-

cess claims. On appeal, a panel of the Sixth Circuit Court

of Appeals unanimously reversed the decision of the

district court, and granted qualified immunity to the

Magistrates on Petitioner’s due process claims:

Applying the law to the undisputed facts of

this case, the members of the fiscal court did not

have the legal capacity to deprive Mineer of

constitutional rights in connection with his ter-

mination.

The sole power of removal was vested in

the county’s chief executive office. As a matter

of law, it is doubtful that the fiscal court would

have played a role had Judge Call followed the

statute in removing Mineer. Call did not initiate

removal proceedings. The fiscal court had no

authority to conduct a hearing.

Petitioner’s Appendix A, pp. 13a-14a.

Further, two members of the panel agreed that the

district court erred in denying qualified immunity to

Respondent Call on both Petitioner’s First Amendment

and Fourteenth Amendment due process claims.

The sixth circuit correctly held that the resolution of

Mineer’s due process claim turned on the proper con-

struction of his property interest under Kentucky law.

11

The Court then determined that Petitioner had no prop-

erty interest in his job as Road Supervisor as of January 1,

1990, and therefore, had no due process protection?:

The conclusion of this court in Christian [v.

Belcher, 888 F.2d 410 (6th Cir. 1988)] that the

terms of non-civil service employees expire con-

temporaneously with that of the outgoing

administration remains the most commonsensi-

cle reading of the applicable Kentucky law. See

OAG 82-63 (absent a merit system, county

employees — including the county road super-

visor — under a previous administration auto-

matically lose their jobs at the beginning of the

new administration); OAG 82-22 (present fiscal

court may not bind fiscal court coming into

office in January 1982, with a contract for county

road supervisor; appointee could only fill out

the remainder of the term ending on the second

Tuesday of January 1982). Kentucky Revised

Statutes Annotated § 179.020(7) has much less

relevance than Mineer attempts to give it. The

statute gives the county executive the power to

employ a county road engineer or supervisor

with the consent of the fiscal court. See OAG

82-142. Both the county executive and the fiscal

court magistrates serve four-year terms. Ky. Rev.

Stat. Ann. § 67.050 (magistrates); Ky. Rev. Stat.

Ann. § 67.700 (county executive). Thus, the stat-

ute serves only to give the county executive and

4 In fact, the sixth circuit Opinion recognized that even if

Kentucky law were unclear regarding the terms of County Road

Supervisors, such that reasonable county officials could dis-

agree on the issue, immunity should attach. Petitioner’s Appen-

dix A, p. 20a, n. 1 (citing Guercio v. Brody, 911 F.2d 1179 (6th Cir.

1990), cert. denied, __ U.S. __, 111 S. Ct. 1681 (1991)).

12

the magistrates the flexibility to make either one

or two supervisor appointments during their

terms.

+ * *

A coherent reading of the entire statute

compels the conclusion that a road supervisor

cannot serve a two-year term and then receive a

four-year appointment, as was attempted by the

incumbents in this case.

* * *

To read the statute otherwise would allow

the absurdity that has developed in this case -

lame duck magistrates and county executives

could appoint officers to terms of office which

would bind succeeding popularly-elected

administrations. Such a thwarting of the major-

ity will is not commanded by Kentucky law.

Mineer did not have a valid contract which extended

his term in office beyond January, 1990.

Petitioner’s Appendix A, pp. 21la-23a (emphasis added).

With respect to Petitioner’s First Amendment claim

against Respondent Call, the court of appeals held that,

“{iJn January 1990, First Amendment law did not clearly

establish that a county executive could not refuse to

rehire county road supervisors for politically motivated

reasons.” (Petitioner’s Appendix A, p. 25a). In reviewing

this Court’s reformulation of the inquiry in political affil-

iation/employment cases, the court of appeals noted that

this Court had “abandon{[ed] the labels ‘policymaker’ or

‘confidential employee’ in favor of asking ‘whether the

hiring authority can demonstrate that party affiliation is

an appropriate requirement for the effective performance

of the public office involved.’ ” Petitioner’s Appendix A,

13

p. 26a (citing Branti v. Finkel, 445 U.S. 507, 518, 63 L.Ed.2d

574, 100 S.Ct. 1287 (1980)). More specifically, the court of

appeals summarized the state of the law on the issue of

politically motivated personnel decisions, characterizing

the law as “unsettled.” Petitioner’s Appendix A, p. 27a

(citing Cagle v. Gilley, 957 F.2d 1347 (6th Cir. 1992)). In

fact, the court of appeals cited its own recent cases hold-

ing that “a wide variety of public officials do not enjoy

the right to be free from patronage dismissal.” Peti-

tioner’s Appendix A, p. 28a (citing Monks v. Marlinga, 923

F.2d 423 (6th Cir. 1991) (city prosecutor), and Williams v.

City of River Rouge, 909 F.2d 151 (6th Cir. 1990) (city

attorney)). In ~um, the court of appeals held that

“(w]hatever the ultimate merits of Mineer’s claim, it can-

not be said that he had a clearly established right as a

county road supervisor to be free from a politically moti-

vated dismissal.” [Id.]

On remand, the district court refused to enforce the

mandate of the sixth circuit, dismissing all of Petitioner’s

claims against the Magistrates, but retaining jurisdiction

over Petitioner’s claims against Call. Respondent Cail

then petitioned for a writ of mandamus seeking enforce-

ment of the Opinion and mandate of the sixth circuit

directing the claims against him be dismissed. As noted,

supra, the sixth circuit did in fact direct the district court

to take all appropriate steps to enforce its mandate. In re:

Jewell Call, Docket No. 93-6046, Petitioner’s Appendix B,

pp. 29a-3la.°

5 On November 2, 1993, the district court entered an Order

conforming with the mandate of the court of appeals.

14

REASONS FOR DENYING THE WRIT

I. The Opinion of the United States Court of Appeals

Granting Qualified Immunity to Judge/Executive

Cal! Relied Upon Established Precedent of This

Court.

The rule of law regarding qualified immunity has

been affirmatively established by the precedent of this

Court. In Harlow v. Fitzgerald, 457 U.S. 800, 73 L.Ed.2d

396, 102 S.Ct. 2727 (1982), this Court held that a public

official is entitled to qualified immunity if he acted rea-

sonably in light of established law, i.e., that he had a state

of mind free of malicious intention to deprive another of

his federally secured rights. Harlow, 457 U.S. at 815. In

Anderson v. Creighton, 483 U.S. 635, 97 L.Ed.2d 523, 107

S.Ct. 3034 (1987), this Court further elaborated on the

qualified immunity standards set forth in Harlow:

[T]he right the official is alleged to have violated

must have been ‘clearly established’ in a more

particularized, and hence more relevant, sense:

the contours of the right _must be sufficiently

clear so that a reasonable official would under-

stand that what he is doing violates that

right... . [I]n the light of pre-existing law, the

unlawfulness must be apparent.

Anderson, 483 U.S. at 640.

The sixth circuit correctly identified the appropriate

inquiry in cases alleging politically motivated personnel

decisions. The court of appeals relied upon this Court's

abandonment of the labels “policymaker” or “confiden-

tial employee” in favor of asking “whether the hiring

authority can demonstrate that party affiliation is an

appropriate requirement for the effective performance of

15

the public office involved.” Petitioner's Appendix A, p.

26a (citing Branti v. Finkel, 445 U.S. 507, 518 (1980)).

In making the particularized inquiry demanded by

this Court, the court of appeals noted that the state of the

law on the issue of politically motivated personnel deci-

sions was “unsettled.” Petitioner’s Appendix A, p. 27a

(citing Cagle v. Gilley, 957 F.2d 1347, 1349 (6th Cir. 1992)).

In Cagle, the sixth circuit reversed a district court’s denial

of summary judgment to a sheriff who had failed to

rehire former deputies, allegedly due to their election

support of an opponent. The sixth circuit concluded that

“any sheriff of reasonable competence in [defendant's]

position, measured objectively, would [not] have clearly

understood that he was under an affirmative duty to have

refrained from refusing to reappoint the deputies in

August and September, 1988.” Cagle, 957 F.2d at 1349. It

must be recalled that the personnel decision complained

of herein by Petitioner occurred in early January, 1990,

some six-and-a-half months before the decision of this

Court in Rutan v. Republican Party of Illinois, 497 U.S. 62,

111 L.Ed.2d 52, 110 S.Ct. 2729 (1990).-The sixth circuit

correctly found that it could not be said that Petitioner

had a clearly established right in January, 1990, as a

county road supervisor to be free from a politically

motivated dismissal.® Interestingly, Petitioner himself

6 The sixth circuit assumed for purposes of qualified immu-

nity that the county road supervisor was in fact subject to a

politically motivated dismissal, finding that if it had been

clearly established that political considerations were not an

appropriate job requirement, then the question whether defen-

dant’s dismissal was motivated solely by politics would give

rise to a jury question.

16

recognizes that the law was not clearly established

despite his protestations to the contrary. Petitioner writes,

in support of his argument for the writ:

The reason this Court should grant this Petition

for Certiorari is that, as Justice Powell wrote in

his dissent in Branti, supra, ‘The standard [for

politically based firings] articulated by the court

is framed in vague and sweeping language.

Elected and appointed officials at all levels no

longer will know when political affiliation is an

appropriate consideration in filling a position.’

Petition for Writ of Certiorari, p. 14 (citation omitted).

Further, Petitioner cites the Opinion of the United

States Court of Appeals for the Seventh Circuit in Upton

v. Thompson, 930 F.2d 1209 (7th Cir. 1991) in a doomed

attempt to find support for his Petition:

So after Branti, the test is whether party affilia-

tion is [an] appropriate requirement for effective

job performance. Jobs requiring party affiliation

for effective job performance may or may not be

of the policymaking or confidential variety. That

is, between the strictly menial government

worker (who under Elrod and Branti, is clearly

and completely protected from patronage firing)

and the policymaker/confidential assistant

(whose protection from patronage firing is non-

existent) there is a range of government positions

for which the propriety of patronage firing has

depended largely on the court's juggling of compet-

ing constitutional and political values. The results

have not been consistent.

Petition for Writ of Certiorari, p. 15 (emphasis added).

17

Petitioner’s reliance on these authorities only sup-

ports the denial of the writ, since Petitioner failed to show

it was clearly established that he had a “particularized

right” to be free from politically motivated firing as the

Fleming County Road Supervisor.

Simply put, the issues faced by the United States

Court of Appeals for the Sixth Circuit involve questions

of law peculiar to the Commonwealth of Kentucky and,

more particularly, peculiar to the status, job requirements,

and political association appropriate to the job of road

foreman. Accordingly, this case does not present ques-

tions of conflict among the various circuit courts of

appeal, nor is the opinion of the sixth circuit inconsistent

with this Court’s previous decisions in cases involving

either considerations of political affiliation in employ-

ment cases, or decisions in cases involving qualified

immunity generally.

II. The Opinion of the Sixth Circuit Court of Appeals

Correctly Granted the Members of the Fiscal Court

Qualified Immunity as to Petitioner’s Fourteenth

Amendment Due Process and First Amendment

Rights, Since the Magistrates Had No Authority to

Act Under Kentucky Law and Further, Because Peti-

tioner Had No Property Interest Under State Law

Protecting His Right to Continued Employment.

As noted, supra, the Respondents believe that this

Court does not have jurisdiction to consider the question

raised by Petitioner, as Petitioner failed to file a timely

Petition for Writ of Certiorari.

18

In any event, the Sixth Circuit Court of Appeals

correctly analyzed both state and federal law in reversing

the deniai of summary judgment to the Magistrates. Both

of Petitioner’s claims revolve around questions of state

law, which are inappropriate for further review by this

Court.

A. Fourteenth Amendment.

The sixth circuit correctly found that Petitioner did

not state a Fourteenth Amendment procedural due pro-

cess claim against the Magistrates because Petitioner had

no property right under state law protected by the Four-

teenth Amendment. The sixth circuit correctly relied

upon KRS 179.020; KRS 67.710(7); Opinion of the Attor-

ney General, OAG 78-432; and its own precedent, Chris-

tian v. Belcher, 888 F.2d 410, 414 (6th Cir. 1989). Taken

together, the foregoing authorities establish that, under

Kentucky law, the terms of all county employees expire

automatically at the end of each executive administration.

The court of appeals thus found that, while a fiscal court

could appoint a road supervisor to either a two-year or a

four-year term, the fiscal court could not appoint a road

supervisor to a term of office which would bind succeed-

ing popularly elected administrations. Therefore, Peti-

tioner had no legitimate claim of entitlement to continued

employment, and thus no interest protected by the Due

Process Clause of the Fourteenth Amendment.

B. First Amendment.

Respondents acknowledge that even an employee

with no interest in continued employment protected by

19

the Fourteenth Amendment Due Process Clause might

yet have an interest in being free from political retaliation

under the First Amendment. However, in order to prove

a First Amendment violation, Petitioner would have to

prove the Magistrates had the authority to act with

respect to his failure to be re-hired. The sixth circuit

correctly found that “[a]pplying the law to the undis-

puted facts of this case, the members of the fiscal court

did not have the legal capacity to deprive Mineer of

constitutional rights in connection with his termination.”

(Petitioner’s Appendix A, p. 13a).

The decision of the sixth circuit does not create a

conflict among the various circuits, nor does the opinion

conflict with any established precedent from this Court.

Accordingly, Petitioner has failed to show sufficient rea-

son for granting the writ.

III. Public Policy and Tradition Support Party Affilia-

tion as a Valid Basis For Employment Decisions By

Public Officials.

In Rutan v. Republican Party of Illinois, 497 U.S. 62, 111

L.Ed.2d 52, 110 S.Ct. 2729 (1990), this Court determined

that the patronage system is unconstitutional, except

when utilized for those jobs for the performance of

which, party affiliation is an “appropriate requirement.”

Rutan, 497 U.S. at 64, 111 L.Ed.2d at 60, 110 S.Ct. at 2729.

This ruling went against long-standing tradition that was

firmly rooted in many areas of public employment.

The Constitution places different restrictions upon

the government in its capacity as a lawmaker, than as an

20

employer. This Court has recognized this in many con-

texts, with respect to many different constitutional guar-

antees. For example, in Kelley v. Johnson, 425 U.S. 238, 247,

47 L.Ed.2d 708, 96 S.Ct. 1440 (1976), this Court found that,

while private citizens cannot be prevented from wearing

long hair, policemen could be prohibited. Likewise, in

O’Connor v. Ortega, 480 U.S. 709, 723, 94 L.Ed.2d 714, 107

S.Ct. 1492 (1987), this Court found that, although private

citizens may not have their property searched without

probable cause, in many circumstances government

employees could be subject to searches. Significantly, pri-

vate citizens cannot be punished for partisan political

activity, but federal and state employees can be dismissed

and otherwise punished for that very reason. Public

Workers v. Mitchell, 330 U.S. 75, 101, 91 L.Ed.2d 754, 67

S.Ct. 556 (1947); CSC v. Letter Carriers, 413 U.S. 548, 556,

37 L.Ed.2d 796, 93 S.Ct. 2880 (1973); Broadrick v. Oklahoma,

413 U.S. 601, 616-17, 37 L.Ed.2d 830, 93 S.Ct. 2908 (1973).

Thus, the law has traditionally differentiated between the

government as regulator of private conduct and the gov-

ernment in its capacity as an employer.

Patronage was a basis for government employment

from the earliest days of the Republic. Then in Elrod v.

Burns, 427 U.S. 347, 49 L.Ed.2d 547, 96 S.Ct. 2673 (1976),

this Court significantly restricted patronage. Nonetheless,

patronage continued to be viable, at least to the extent

permitted by decisions of this Court. Given that the Con-

stitution’s prohibition against laws “abridging the free-

dom of speech” does not apply to laws enacted in the

government’s capacity as an employer in the same way it

does to laws enacted in the government’s capacity as

21

regulator of private conduct, it is clear that the patronage

system is not per se unconstitutional.

When the Constitution is ambiguous as to a particu-

lar issue, and when the practice in question is not

expressly prohibited by the test of the Bill of Rights, but

bears the endorsement of a long tradition of open, wide-

spread, and unchallenged use that dates back to the

beginning of the Republic, there is no proper constitu-

tional basis for striking it down. This is not to say that

tradition can supersede the unambiguous language of the

Constitution, but only to suggest that an accepted tradi-

tion should not be scrutinized for its conformity to some

abstract principle of First Amendment adjudication

devised by the Supreme Court.

The proper test in cases such as the one at bar should

be whether the governmental advantages of the

patronage system reasonably outweigh its coercive effect.

When dealing with its own employees, the government

may not act in a manner that is patently arbitrary or

discriminatory. Cafeteria and Restaurant Workers v.

McElroy, 367 U.S. 886, 896, 6 L.Ed.2d 1230, 81 S.Ct. 1743

(1961). But, regulations are valid if they bear a “rational

connection” to the government end sought to be served.

Kelley v. Johnson, 425 U.S. 238, 247, 47 L.Ed.2d 708, 96 S.Ct.

1440. In fact, this Court in Broadrick v. Oklahoma, 413 U.S.

601, 37 L.Ed.2d 830, 93 S.Ct. 2908 (1973), upheld restric-

tions on state employees directed at political expression,

which if engaged in by private persons would plainly be

protected by the First and the Fourteenth Amendments.

Thus, because “government offices could not function if

every employment decision became a constitutional mat-

ter,” Connick v. Myers, 461 U.S. 138, 143, 75 L.Ed.2d 708,

22

103 S.Ct. 1684 (1983), this Court should afford a wide

degree of deference to the employer’s [government's]

judgment that an employee’s speech will interfere with

close working relationships. Connick, 461 U.S. at 152, 75

L.Ed.2d at 708, 103 S.Ct. 1684. Since the government may

dismiss an employee for political speech “reasonably

deemed by Congress to interfere with the efficiency of the

public service,” Public Workers v. Mitchell, 330 U.S. 75, 101,

91 L.Ed. 754, 67 S.Ct. 556 (1947), it follows a fortiori that

the government may dismiss an employee for political

affiliation if “reasonably necessary to promote effective

government.” Brown v. Glines, 444 U.S. 348, 356, n. 13, 62

L.Ed.2d 540, 100 S.Ct. 594 (1980).

Because this area of constitutional jurisprudence is

fraught with ambiguities, the deeply rooted tradition of

the American people should be given effect. This Court in

many other contexts has given great weight to history

and tradition. See Bowers v. Hardwick, 478 U.S. 186,

192-194, 92 L.Ed.2d 140, 106 S.Ct. 2841 (1986) (examining

consensual sodomy in light of long-standing history and

tradition); Burnham v. Superior Court of California, County

of Marin, 495 U.S. 604, 109 L.Ed.2d 631, 110 S.Ct. 2105

(1990) (considering tradition in evaluating claims that a

particular procedure violates the due process clause);

Camara v. Municipal Court of San Francisco, 387 U.S. 523,

537, 18 L.Ed.2d 930, 87 S.Ct. 1727 (1967) (considering the

history of the judicial and public acceptance of the type of

search in question when applying the Fourth Amend-

ment’s reasonableness test). Therefore, even if tradition is

not dispositive of this issue, it should be afforded great

weight when applying the aforementioned balancing test.

23

There are many advantages and disadvantages to the

patronage system. The-system clearly stabilizes political

parties and prevents excessive political fragmentation.

The patronage system provides incentives for the public

to become involved in the political process; thus, more

people become involved in government and the govern-

ment more aptly reflects the views of the populous. Fur-

ther, the patronage system stabilizes the party system by

encouraging a two-party system. When getting a job is an

available incentive for party workers, those attracted by

that incentive are likely to work for a party that has the

best chance of winning an election rather than some

splinter group that has little hope of success. Not only is

a two-party system more likely to emerge, but the differ-

ences of those parties are likely to be moderated as each

party reflects its desire to appeal to the majority of the

electorate. In addition, patronage has been a powerful

means of achieving the social and political integration of

excluded groups. See e.g., Elrod v. Burns, 427 U.S. 347, 376,

49 L.Ed.2d 547, 567, 96 S.Ct. 2673, (1976) (Powell, J.,

dissenting). By supporting and ultimately dominating a

particular party, racial and ethnic minorities reap the

patronage awards that system has to offer. Thus, the

abolition of patronage prevents groups that have only

recently obtained political power from following this

path of economic and social advancement. The patronage

system demands only that the party worker is loyal to the

organization itself, rather than a set of political beliefs.

The party worker is clearly free to urge within the organi-

zation the adoption of any political position, but if that —

position is rejected by the party, he or she is definitely

encouraged to vote and work for the party nonetheless.

24

Thus, even though the patronage system influences or

redirects individual political expression and political

association, it is not a significant impairment of free

speech or free association.

The choice in question is not just between patronage

and a merit-based civil service, but rather among various

combinations of the two that may suit different political

units in different areas. Once the courts reject as a crite-

rion a long political tradition showing that party-based

employment is entirely permissible, yet are unwilling to

replace it with the principal that party-based employment

is entirely impermissible, the courts have left the realm of

law and entered the domain of political science. Clearly,

the appropriate “mix” of party-based employment is a

political question if there ever was one. Therefore, in light

of the long-standing tradition in public policy, and absent

a clear constitutional prohibition, the patronage system

cannot be deemed unconstitutional.

* 4

CONCLUSION

The Petition for Writ of Certiorari should be denied.

Respectfully submitted,

C. THomas Hectus

Counsel of Record

R. THADDEUS KEAL

Witurams & WAGONER

101 Bullitt Lane

Suite 202

Louisville, Kentucky 40222

(502) 429-5700

Counsel for Respondents

APPENDIX

App. 1

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NO. 93-6046

In Re: JEWELL CALL, Individually and

in his official capacity as

Fleming County Judge/Executive

PETITION FOR WRIT OF MANDAMUS

(Filed Aug. 13, 1993)

Petitioners, Jewell Call, individually and in his offi-

cial capacity as Fleming County Judge/Executive, pur-

suant to 28 U.S.C. § 1651(a), and Fed. R. App. P. 21(a), by

counsel, in support of their Petition for Writ of Man-

damus, state as follows:

STATEMENT OF FACTS

William Mineer filed suit in district court for injunc-

tive relief and damages for alleged constitutional viola-

tions, pursuant to 42 U.S.C. § 1983. (Exhibit 1). Mineer

claimed that the termination of his employment without a

pre-deprivation hearing violated his right to procedural

due process under the Fourteenth Amendment to the

United States Constitution. Mineer also claimed the Peti-

tioners’ actions were in retaliation for his political activ-

ity, in violation of the First Amendment. Mineer filed suit

against Jewell Call, individually and in his official capac-

ity as Fleming County Judge Executive and the Fleming

County Magistrates, individually and in their official

capacities. Petitioners moved for summary judgment. The

district court granted the magistrates’ motion as to Plain-

tiff’s claims based on his First Amendment and state law

App. 2

claims for wrongful discharge. The district court other-

wise denied the motion for summary judgment. (Exhibit

a).

Judge Call and the magistrates appealed from the

district court Order denying their motion for summary

judgment on the issue of qualified immunity. [Sixth Cir-

cuit Docket #92-5368]. On May 4, 1993, a three judge

panel of this court entered an Opinion and Order.

(Exhibit 3), On page 1 of the Opinion, the following

appears:

James P. Churchill, Senior District Judge, deliv-

ered the opinion of the Court. Guy, circuit

judge, delivered a separate opinion, concurring

in part and dissenting in part, in which Ryan,

circuit judge, concurred. (Emphasis added).

Judge Churchill opined that the magistrates were

entitled to qualified immunity with respect to both the

Fourteenth Amendment procedural due process claim

and the First Amendment claim. Judges Guy and Ryan

both concurred with this result. Judge Churchill did not

agree that Petitioner Call individually was entitled to

qualified immunity. However, Judge Guy opined that the

county judge/executive was entitled to qualified immu-

nity on both the Fourteenth and First Amendment claims,

and Judge Ryan concurred. Only Judge Churchill opined

that the county judge/executive was not entitled to quali-

fied immunity., Thus, with respect to the county/judge

executive, two members of the panel determined that

Petitioner Call was entitled to qualified immunity. Conse-

quently, Judge Executive Call, prevailed on all claims

against him.

App. 3

On June 2, 1993 the mandate issued from the Sixth

Circuit. On June 18, 1993, Defendants, by counsel, served

a motion to enforce the mandate in the district court.

(Exhibit 4). On July 8, 1993, Plaintiff opposed Defendant’s

motion to enforce mandate. (Exhibit 5). On July 23, 1993,

the district court filed its Opinion, Order, and Judgment.

In its Opinion, the district court noted:

Although the paragraph on page one of the

Sixth Circuit’s opinion is rather confusing, the

Court finds that Judge Churchill’s opinion is the

opinion of the court. Therefore, all of the Plain-

tiffs claims against the Magistrates shall be dis-

missed and judgment entered in their favor. The

claims against Defendant Call, however, remain

and shall be set for jury trial.

(Exhibit 6).

In its Order, the court stated:

3. Assignment of the Plaintiff’s remaining

claims for jury trial is PASSED for thirty (30)

days so that counsel for the Defendants may

take appropriate action to clarify the decision of

the United States Court of Appeals for the Sixth

Circuit dated May 4, 1993. (Emphasis in origi-

nal).

(Exhibit 7).

This Petition for Writ of Mandamus followed.

JURISDICTION

It is well established that a petition for writ of man-

damus is the proper method by which a court may “con-

strue its own mandate in connection with its opinion; and

App. 4

if it finds that [a lower court] has erred, or acted beyond

its province, in construing the mandate and opinion, to

correct the mistake by a writ of mandamus.” Gaines v.

Rugg, 148 U.S. 228, 238, 37 L.Ed. 432, 435, 13 S.Ct. 611, __

(1893); see ulso, General Atomic Co. v. Feltner, 436 U.S. 493,

56 L.Ed.2d 488, 98 S.Ct. 1939 (1978) (if lower court mis-

takes or misconstrues decree of higher court and does not

give full effect to higher court’s mandate, its action may

be controlled by writ of mandamus to execute higher

court’s mandate); Re N.V. Zind-Hollandsche Scheepvaart

Mattschappij, 64 F.2d 915 (5th Cir. 1933) (misconstruction

by lower court of mandate of appellate court could be

controlled by mandamus).

STATEMENT OF THE ISSUE PRESENTED

Whether the district court erred in failing to dismiss

Plaintiff’s complaint in its entirety and failed to enforce

the mandate of the United States Court of Appeals for the

Sixth Circuit when two out of three judges in a three

judge panel of the Sixth Circuit agreed that the county

judge/executive was entitled to qualified immunity?

STATEMENT OF THE RELIEF SOUGHT

Petitioner respectfully requests this Court to enter an

order directing the district court to act in conformity with

__the May 4, 1993 Opinion and Order of the Sixth Circuit

and in accordance with the June 2, 1993 mandate of the

Sixth Circuit, and to enter an Order dismissing Plaintiff's

complaint, with prejudice.

App. 5

STATEMENT OF THE REASONS WHY

THE WRIT SHOULD ISSUE

It is clear that, absent some direction or action by the

Sixth Circuit, the district court is prepared to assign what

it believes are Plaintiff’s remaining claims for jury trial.

This is so, despite the determination by the Court of

Appeals. The three judge panel unanimously agreed that

the magistrates are entitled to qualified immunity with

respect to both the Fourteenth Amendment procedural

due process claim and the First Amendment claim. With

respect to Judge Executive Cali, Judge Guy stated:

I dissent on the qualified immunity issue as it

relates to the County Executive. I would grant

qualified immunity to him on both the Four-

teenth and First Amendment claims.

(Exhibit 3, Judge Guy, concurring, page 1). Judge Ryan

concurred with Judge Guy. Only Judge Churchill opined

that the county judge/executive was not entitled to quali-

fied immunity. Judge Churchill’s opinion cannot be the

opinion of the court. 28 U.S.C. § 46(d) provides:

A majority of the number of judges authorized

to constitute a court or panel thereof, as pro-

vided in paragraph (c), shall constitute a quo-

rum.

In other words, two of three judges constitutes a quorum.

Minniefield v. State of Alabama, 542 F.2d 947 (5th Cir. 1976);

Wirth Ltd. v. S/S Acadia Foresi, 537 F.2d 1272, 1274 (5th Cir.

1976). Thus, with respect to the county judge/executive,

two members of the panel voted in favor of qualified

immunity and only one voted against. Consequently, if

the district court allowed this case to proceed to jury trial

rather than entering an Order of dismissal, the district

App. 6

court would be acting in conflict with the order and

mandate of the Sixth Circuit.

Moreover, to allow this case to proceed to trial, in

light of this court’s Opinion would violate the principles

enunciated by the Supreme Court in Mitchell v. Forsyth,

472 U.S. 511, 86 L.Ed.2d 411, 105 S.Ct. 2806 (1985). As the

Court noted in Forsyth, Harlow [v. Fitzgerald, 457 U.S. 800,

73 L.Ed.2d 396, 102 S.Ct. 2727 (1982)], . . . recognized an

entitlement not to stand trial or face the other burdens of

litigation, conditioned on the resolution of the essentially

legal question whether the conduct of which the plaintiff

complains violated clearly established law. The entitle-

ment is an immunity from suit rather than a mere defense

to liability; and like an absolute immunity, it is effectively

lost if a case is erroneously permitted to go to trial.

Mitchell, 472 U.S. at 526, 86 L.Ed.2d 425, 105 S.Ct. at ___.

Again citing Harlow, the Court in Mitchell noted that,

“Harlow emphasizes that even such pretrial matters as

discovery are to be avoided if possible, as ‘[i]nquiries of

this kind can be peculiarly disruptive of effective govern-

ment.’ ” Mitchell, 472 U.S. at 526, 86 L.Ed.2d 425, 105 S.Ct.

at ____ (quoting Harlow v. Fitzgerald, 457 U.S. at 817, 73

L.Ed.2d at __, 102 S.Ct. at __).

Here, the Sixth Circuit has determined that County

Judge/Executive Call is entitled to qualified immunity. If

County Judge/Executive Call is required to submit to a

jury trial, the very circumstances which the Court in both

Harlow and Forsyth predict, will occur. County Judge/

Executive Call will be required to submit to a jury trial

even though a three judge panel of this Court has deter-

mined he is entitled to qualified immunity, an immunity

App. 7

from suit rather than a mere defense to liability. See

Mitchell, 472 U.S. at 526, 86 L.Ed.2d at 425, 105 S.Ct. at

__. It is inconceivable to Petitioner that two judges of a

three judge panel can rule that a Defendant is entitled to

qualified immunity and the case still be permitted to go

to trial in the district court. County Judge/Executive

Call’s qualified immunity will be “effectively lost” if this

case is erroneously permitted to go to trial. Id. The cir-

cumstances in this case rise to the level of the “excep-

tional circumstances amounting to a judicial ‘usurpation

of power’ [which justifies] the invocation of this extraor-

dinary remedy.” In re Allied Signal, Inc., 915 F.2d 190, 191

(6th Cir. 1990) (quoting In re Bendectin Products Liability

Litigation, 749 F.2d 300, 303 (6th Cir. 1984)).

CONCLUSION

Petitioner respectfully requests this Court to grant its

Petition for Writ of Mandamus and direct the district

court to enter an Order dismissing Plaintiff’s complaint,

with prejudice.

Respectfully submitted,

/s/ R. Thaddeus Keal

C. THOMAS HECTUS

R. THADDEUS KEAL

WILLIAMS & WAGONER

One Oxmoor Place

101 Bullitt Lane, Suite 202

Louisville, Kentucky 40222

(502) 429-5700

App. 8

CERTIFICATE

It is hereby certified that a

true copy of the foregoing was

served upon, by mail, this the

12th day of August, 1993, to:

Original plus 5 copies to:

Clerk, U.S. Court of Appeals

for the Sixth Circuit

538 U.S. Post Office & Courthouse

5th & Walnut Streets

Cincinnati, Ohio 45202

Copies to:

Honorable Thomas M. Troth

Honorable John Swinford

Post Office Box 397

Cynthiana, Kentucky 41031

Honorable John C. Price

Fleming County Attorney

Courthouse, Court Square

Fleminsburg, Kentucky 41041

Judge Karl S. Forester

United States District Court

Eastern District of Kentucky

at Lexington

P.O. Box 2165

Lexington, Kentucky 40595

/s/ R. Thaddeus Keal

R. THADDEUS KEAL