Petitioners Brief — Mumford v. Basinski

Supreme Court, U.S.

FILED

97.243 UG 41

Ne.

Bibel

In The

Supreme Court of The United States

October Term 1996

‘

DAVID M. MUMFORD,

Petitioner,

Vv.

DAVID A. BASINSKI,

Respondent.

+

Petition For A Writ Of Certiorari

To The United States Court of

Appeals For The Sixth Circuit

+

PETITION FOR WRIT OF CERTIORARI

WITH APPENDIX FILED UNDER SEPARATE VOLUME

+

*DENNIS J. NIERMANN

KRAMER & NIERMANN, L.P.A.

3214 Prospect Avenue, East

Cleveland, Ohio 44115-2600

(216) 431-5300

*Counsel of Record

Counsel for Petitioner

August 1, 1997

LEGAL ADVANTAGE * 432 Wainut Street * Cincinnati, OH 45202

QUESTIONS PRESENTED FOR REVIEW

#] Whether, consistent with this Court’s holdings in

Branti v. Finkel, 455 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d

574, Rutan v. Republican Party of Illinois, 110 S.Ct. 2729

(1990) and O'Hare Truck Service, Inc. v. City of Northlake,

116 S.Ct. 2353 (1996), and in direct conflict with decisions

from this Court and from other Circuits, the Sixth Circuit

erred in holding that a government position was inherently

political as a matter of law, when the Defendants admit and

all the facts demonstrate that political affiliation was not an

appropriate requirement for the position?

#2 Whether, under McMillian v. Monroe County,

Alabama, 65 L.W. 4403 (1997), a county is liable for the

administrative acts of an administrative judge for a county

common pleas court acting in the particular area or issue

regarding employment decisions for a local government?

PARTIES TO THE PROCEEDING

Petitioner is David M. Mumford, an individual who

was terminated from his position as a domestic relations

court referee in Lorain County, Ohio.

Defendant originally was Joseph C. Zieba, in his

individual and official capacities, but David A. Basinski was

substituted, in his official capacity, when he replaced Joseph

Zieba as the Administrative Judge of the Lorain County

Domestic Relations Court.

il

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ........

PARTIES TO THE PROCEEDING ............. il

TABLE OF AUTHORITIES ................. IV

Jog SE

STATEMENT OF JURISDICTION .............

CONSTITUTIONAL PROVISIONS INVOLVED .... 2

STATEMENT OF THE CASE.................. 2

REASONS FOR GRANTING THE WRIT......... 8

CRI i ek eee n neces... 30

APPENDICES [Listed under separate table]

ill

TABLE OF AUTHORITIES

U.S. SUPREME COURT CASES

CASES PAGE(S)

Branti v. Finkel, 455 U.S. 507,

100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). . . .3, 5, 7, 9, 11,

12, 13, 14, 15, 17,

18, 19, 20, 21, 23

Elrod v. Burns, 427 U.S. 347, 359,

96 S.Ct. 2673, 2683 (1976) ... 9, 11, 12, 13, 14, 18, 21

Ex Parte Young, 209 U.S. 123 (1908) ........... 29

Green v. Mansour, 474 U.S. 64, 68.

88 L.Ed.2d 371, 106 S.Ct. 423, 426 (1985) ....... 29

Jett v. Dallas Independent School District,

(OP TE, CH AUPE 6 6 cre Pee eas OK ea 24

McMillian v. Monroe County, Alabama,

65 L.W. 4403 (1997) .... 8, 10, 24, 25, 26, 27, 29, 30

O'Hare Truck Service, Inc. v. City of Northlake,

PRG BAA: Sooo Cle eae ee ba eee ee il, 19

Rutan v. Republican Party of illinois,

110 S.Ct, 2729 CISD) 2 ee . * th, oc, 1 2, 20

U.S. COURTS OF APPEALS CASES

: PAGE(S)

Balogh v. Charron, 855 F.2d 356

(© a) ee ee eee a 16

Barrett v. Thomas, 649 F.2d 1193

+ OS Ay, |) eee Te ewer res ee 16

Bauer v. Bosley, 802 F.2d 1058, 1062

(i Ce. TOO) es aw ke ee eevee eee 13

Burns y. County of Cambria, Pa., 971 F.2d

1015S (308 Cr. YSRE) | «ncn Cae ee eee 16

Davis v. Ector County, Tex., 40 F.3d 777,

784 (Sth Cir., 1994) 2... ccc ee eee eee ces 27

Dickeson v. Quarberg, 844 F.2d 1435

(10th Cie, TORR) nn cee ei ee Cees pias ee

Dimming v. Wahl, 983 F.2d 86

(We Ce TOIT nn os a ee eee 16

Eggar v. City of Livingston, 40 F.3d

312. 315 (Oth Cw... TORR)... 6 cc hn ei eens ese 28

Familias Unidas v. Briscoe, 619 F.2d 391, 404

(Sia Cie, VOR no ne oe es ee eee 26

Faughender v. City of North Olmsted, 927 F.2d

vi

PAGE(S)

909. 913-14 (6th Cir. 1991) .. 2... we eee ww ee we 3

Harter v. Vernon, 101 F. 3d 334, 342

I COOP x a 6 v0 w 4k OER eee Ek 27

Horton v. Taylor, 767 F.2d 471, 478

8 A or eee 13. 15

Jones v. Dodson, 727 F.2d 1329

fie Ge, FIGS) nw cece eee 16

Lohorn v. Michal, 913 F.2d 327, 335

Ce | a a ee a 14

Lucas v. O'Loughlin, 831 F.2d 232, 234-235

Cae Ce. ESET) tv vee 4 0 40 oe Che eee uF

Matlock v. Barnes, 932 F.2d 658, 663

t,o Og | eee ee a rarer ot 14

Meeks v. Grimes, 779 F.2d 417

(7th Cir. 1985) .............. 9, 14, 16, 17, 21, 23

PAGE(S)

Parker v. Williams, 862 F.2d 1471, 1479

a4) Ce eg ee aera ere oe ee 27

Rodriguez-Burgos v. Electric Energy Authority,

Soa Ful Siete Cie Ga ROD ba eee Geena 14

Roldan-Plumey vy. Cerezo-Suarez, 115 F.3d 58

qt oe 4a. ; ; arene ar er eee 9, 16, 22, 23

Soderbeck v. Burnett County, Wisconsin, 752 F.2d

ZOD, Lee-aee CH CW., 19GS) ow cc ev cases 3, 7, 14

Stott v. Haworth, 916 F.2d 134, 145

Ue Rm i a ne eae ae aly ge et ag aga 14

Tavano v. County of Niagra, 800 F.2d 1128

‘yt A, nn te Ann ee ren ae eae ere 15

Terry v. Cook, 866 F.2d 373, 377-378

ot) Le Se. er rere eh Pe ae ee 15, 16

Upton v. Thompson, 930 F.2d 1209

Ree: DUPED Vaasa ea ee ae es ok eee eae 16

Van Ooteghem v. Gray, 774 F.2d 1332, 1337

IE oy sa aS pe week oe ee ee es 28

Vill

PAGE(S)

Mendez-Palou v. Rohena-Betancourt, 813 F.2d

S255, Ee Ci Ge, PRT 6 ce Oe ee even ds 13, 14

Mumford v. Zieba, 4 F.3d 429, 435

Eee iy Se ae ear are eae 1,4

Mumford v. Basinski, 105 F.3d 264

a PE rs ek ed a ee 1, 8, 13, 16

McBee v. Jim Hogg County, Texas, 730 F.2d

SO Ce a See ee ee ee eee lees 16

Nekolny v. Painter, 653 F.2d 1164,

2 Cre Ga Se a eee eee ee 14

Ness v. Marshall, 660 F.2d 517, 522

Ce Ue, Se sce eae ee eee ees 13, 15

Owens v. Fulton County, 877 F.2d 947, 952

Ea i SE oe ee a ee et a ee 28

Vii

PAGE(S)

Zold v. Township of Mantua, 935 F.2d 633, 635

CO Rls a Ne eee pie ee etna, 14

Zorzi v. County of Putnam, 30 F.3d 885, 893

CFR ig, Ciscoe ee Se ete a 14

U.S. DISTRICT COURT CASES

Mumford v. Zieba, 788 F. Supp. 987

EPRrEe, SA PES ny ik x oe ee eee ee as 1, 4, 7

Mumford v. Basinski, 915 F. Supp. 917

SEEK TLE AT Et ee ee |

CONSTITUTIONAL PROVISIONS

First Amendment to the United States

Cometwaee ok. oc cc succes 1, 6, 8, 9, 11, 17, 18

Eleventh Amendment to the United States

Cs lc ad ve ae el een 5, 8, 10, 24, 29, 30

Fourteenth Amendment to the United States

IN tere ene ts nem ee a eae l

STATUTES

42 U.S.C. Soctiom 1963 . 2... cece 1, 24, 26, 27, 28

OTHER REFERENCES

Federal Rule of Civil Procedure 52(a) ........... 15

Ohio Rule of Civil Procedure 53 .......... 2, 7, 20

Ohio Rule of Civil Procedure 75 ............. 2,7

Ohio Rules of Juvenile Procedure 40 .......... a7

Ohio Revised Code Section 2151.13 ........... 25

LAW_REVIEW_ ARTICLES

The American University Law Review,

Vol 39:11, Susan Lorde Martin

"A Decade of Branti decisions:

A Goverment Officials Guide to

Pumme Cw nn nw kw eee ewes 13

*

PETITION FOR WRIT OF CERTIORARI

a

v

re

David M. Mumford respectfully asks that a writ of

certiorari issue to review the judgment of the United States Court

of Appeals for the Sixth Circuit in this case reported at 105 F.3d

264 (6th Cir. 1997).

OPINIONS BELOW

The opinious of the Court of Appeals for the Sixth

Circuit are reported at 105 F.3d 264 (6th Cir. 1997) and 4 F.3d

429 (6th Cir. 1993), and are reproduced at Apdx. A, pp. 1-29 and

Apdx. F, pp. 1-29. It is the most recent 1997 decision which

Petitioner David Mumford now seeks this Court to review.

The opinions of the U.S. District Court for the Northern

District of Ohio, Eastern division, are reported at Mumford vy.

Zieba, 788 F. Supp. 987 (N.D., Ohio 1992) and Mumford vy.

Basinski, 915 F. Supp.917 (1995) and are reproduced at Apdx.

D, pp. 1-14 and Apdx. E, pp. 1-7.

STATEMENT OF JURISDICTION

Petitioner David M. Mumford is requesting a Writ of

Certiorari under 28 USC Section 1254(1) to review the final

judgement and order of the United States Court of Appeals for

the Sixth Circuit, found at 105 F.3d 264 (6th Cir. 1997)

CONSTITUTIONAL PROVISIONS INVOLVED

The constitutional provisions involved are the First and

Fourteenth Amendments to the United States Constitution, raised

~via 42 USC. Sector +983. —— ———— =

STATEMENT OF THE CASE

This is a case about the asserted power of an elected

government official to terminate the employment of a subordinate

because of his political affiliation and beliefs when the elected

official had admitted and all the relevant facts demonstrate that

political affiliation was not an appropriate requirement for the |

effective performance of the position involved.

Petitioner David Mumford was employed as a referee in

the Lorain County Domestic Relations Court from 1979 to

January 2, 1989. Mumford’s duties as a matter of fact and as

delineated in Rules 53 and 75 of the Ohio Rules of Civil

Procedure and Rule 40 of the Ohio Rules of Juvenile Procedure

were limited to hearing evidence and making recommendations

of findings of fact and conclusions of law to the Court for its

final decision.

In 1988, Republican Joseph Zieba ran against incumbent

Judge Henry Webber, a Democrat. Mumford supported Webber

in his campaign, during the course of which Zieba told Mumford,

"don’t get caught in the cross-fire." Zieba observed Mumford, a

Democrat, distributing campaign literature on behalf of

incumbent Democrat Webber. Apdx. D-3.

In the November 1988 election, Republican Zieba

defeated incumbent Democrat Webber for the Domestic Relations

Court judgeship. A second Domestic Relations Court judge,

David Basinski, a Democrat to whom referees such as Mumford

to

would report to as well as Zieba, was elected at the same time.

On December 22, 1988, administrative judge-elect Zieba'

notified Mumford that his employment would terminate on

January 3, 1989, the day Zieba took office. Zieba had never

observed Mumford’s work performance. Apdx. D-S. Zieba then

appointed two Republicans to replace Mumford as referees

reporting to the two Domestic Relations Court Judges. Apdx.

D-4.

On December 17, 1990, Mumford filed this action in the

U.S. District Court, Northern District of Ohio. pursuant to section

1983, alleging termination from his referee position because of

his political activities campaigning for his employer, Judge

Webber, and suing Judge Zieba in his individual and official

Capacities.

On March 31, 1992, the district court denied qualified

immunity to Zieba, relying on Branti v. Finkel. 455 U.S. 507

(1980), finding that the inquiry whether the position was one for

which political affiliation was an appropriate requirement was a

question of fact, relying on Soderbeck v.—Burnett County,

Wisconsin, 752 F.2d 285, 288-289 (7th Cir., 1985) and

Faughender v. City of North Olmsted. 927 F.2d 909, 913-14 (6th

' The administrative judge position, which had ultimate and final

power over county employees working for the court, alternated between

Judge Zieba, a Republican, and Judge Basinski, a Democrat, on a

yearly basis. All referees of the court simultaneously reported to both

judges pursuant to the above cited Ohio Rules of Civil and Juvenile

Procedure.

~

5

Cir.1991). The district court also found the position was not

political. Apdx.D, pp. 1-14.

On September |, 1993, the Court of Appeals reversed the

trial court on its denial of qualified immunity and sent this case

“back to the district courrfor trial~Apdx. F, ppo1-?87 ss

On September 28, 1995 after this case had been re-

assigned, the district court found that because Zieba had retired

and because the new administrative judge, Basinski, a Democrat,

had been substituted as the official capacity defendant, the case

was moot. Apdx E, pp. 1-7. The district court also found the

official capacity entity defendant that remained was Lorain

County. Apdx. E-5. This dismissal came after three trial contin-

uances, five years of litigation and twelve days before trial.

On January 23, 1997, the 6th Circuit Court of Appeals

filed the instant opinion. Apdx. A, pp. 1-29. On appeal, Mumford -

successfully convinced the 6th Circuit that the moot-ness ruling

was not correct. The Court ruled in the same opinion that the

11th Amendment barred Mumford’s complaint, and that as a

matter of law the position of court referee was an unpro-tected

political position. This ruling was made in spite of Petitioner’s

objections that the scope of the appeal should have been limited

to the solitary finding of mootness. Apdx. H, pp. 1-5 and in spite

of the fact that the district Court at 788 F. Supp. 987 (N.D., Ohio

1992) had determined the position was to be protected, an issue

not upset by the first Sixth Circuit opinion at 4 F.3d 429 (6th Cir

1993). Defendants never filed a cross-appeal. Apdx. A, pp. 1-29.

On February 6, 1997 Petitioner filed for a Rehearing En

Banc. Apdx. B, pp. 1-22, which was denied on March 7, 1997.

Apdx. C, p.1-2.

meena ecient ated

On May 13, 1997, Justice Stevens, extended the time

within which to file this Petition for Certiorari to and including

August 4, 1997.

Between 1990 and 1997, Petitioner has obtained two

4 - ~districtcourt rulings andtweopinions from the Court of Appeals: ——————

for the Sixth Circuit, and has not yet had his day in court. This

alone should underscore the need for clarity in this area. Had

Mumford had clarity or had Lorain County had clarity, both

could have saved years of time and expense.

The U.S. Court of Appeals for the 6th Circuit, in direct

conflict with previous decisions of this Court and decisions from

other Circuits, upheld petitioner’s termination on the ground that

his employment position was inherently political as a matter of

law.

This case presents direct conflicts between the Sixth

Circuit and this Court and conflicts between the U.S. Courts of

Appeals and the Sixth Circuit.

The Sixth Circuit Court of Appeals by their 1993 and

1997 rulings in this case have taken away the right of every

employee working for any judge in Ohio to sue them indivi-

dually or in their official capacity for their unconstitutional

administrative personnel actions. The decisions in this case render

the constitutional protection of Branti v. Finkel, 455 U.S. 507,

519-520 (1980) and its progeny regarding administrative

employment matters meaningless.

The instant 1997 decision holds that all actions by judges

over county court employees are viewed in Ohio as actions of

"state judges", thus allowing 11th amendment protection

regardless of the particular area or issue involved.

Mumford seeks certiorari of that portion of the instant

decision that goes beyond mootness, the only issue appealed. The

Court of Appeals incorrectly decided two issues not before it and

without the benefit of briefing: |) sua sponte denying Mumford

due process by summarily deciding that his position was not

entitled to First Amendment protection, ignoring the record and

the 1992 District Court Opinion based on the record; and 2) the

Court reversing its own 1993 decision that the case should go to

trial by reversing specific findings from the 1995 district court

decision by incorrectly finding that Lorain "county" referees are

state employees, working for a state judge, without even

distinguishing the roles of judge as judicial officer and

administrative department head for Lorain County.

Defendants never assert anywhere in the record that the

position was one for which political or party affiliation was an

appropriate requirement. In fact, they deny this is the case. See

answer at Apdx. M, p. 4, par. 14: "the political affiliation of

Attorney Balunek and Attorney Musson was not relevant to

and/or a prerequisite for their respective employment with the

Lorain County, Ohio Court of Common Pleas, Domestic

Relations Division." These two referees replaced Mumford.

Zieba testified that he knew of no political duties his

referees had; that they were free to follow their own conscience

as to politics, adding that politics was absolutely not a

consideration for the efficient smooth running of the referee

position, whether it be Republican, Democrat, Socialist or

anything else. Apdx. Y-6.

The other administrative judge, David Basinski, a

Democrat, also confirmed in testimony that party affiliation was

not a necessary requirement for the effective performance of a

Domestic Relations Court Referee. Apdx. S-3. This job entailed

recommending proposed findings of fact and conclusions of law

to the judges of both parties. Apdx. J, pp. 1-17. No political

duties or party affiliation requirements are described in the Ohio

rules of procedure.

The court in the instant case decided. that_a public

positions’ general or specific duties are to be determined as a

matter of law. The district court at 788 F. Supp. 987, 991 (N.D.,

Ohio, 1992) had earlier determined that is a question of fact, not

of law, relying on Soderbeck v. Burnett County, Wisconsin, 752

F.2d 285, 288-289 (7th Cir., 1985). The Sixth Circuit's 1993

decision had agreed with the district court’s 1992 decision by

finding that the analysis of the merits of Petitioner’s claims was

to be one based on the "inherent duties of the position and the

duties of the new incumbent to determine whether political

affiliation is an appropriate consideration for appointment to a

particular vacancy." Apdx. F, pp. 8-9. The 1993 and 1997 6th

Circuit decisions themselves conflict. revealing the level of

confusion extant due to a lack of clarification as to which test is

to be applied, factual or legal.

Mumford should prevail under either analysis.

Under a purely factual analysis, defendants’ answer and

defendants’ testimony that the position is not political lead to one

conclusion, Mumford prevails. The 1992 district court opinion

comes to this conclusion as well.

Under a purely legal analysis, the position of domestic

relations court referee is not a political position. Ohio Rules of

Civil Procedure 53 and 75 and Ohio Rule of Juvenile Procedure

40 limit the duties of a referee to hearing evidence and making

recommendations--duties that under the law or based on a factual

analysis come to the same conclusion--Mumford’s position before

and after his termination was, under Branti, one which did not

require party affiliation for its effective performance.

Without any record-based findings, the instant court

found that the Lorain County judge was a state judge, and the

"county" caurt awas_a_"state" court at LOS F 3d 264-(6th Cir.

1997), failing to look at the administrative function at work here:

a county office holder firing a county employee.

State law does not indicate that the Administrative Judge,

acting as employer over County employees, is a state official.

The instant court denied a rehearing en banc, though the

11th Amendment issue and the question of law versus question

of fact issue as to the non-political nature of Petitioner’s position

had not been argued or briefed on the record.

The instant decision appealed here conflicts with the

decision of this Court in McMillian v. Monroe County, Alabama,

65 LW 4403 (1997) [Apdx. BB 1-35], insofar as it fails to

analyze who an official represents in a particular area or on a

particular issue. Had the Sixth Circuit performed this analysis, the

judges’ roles as administrators over employment matters would

have been scrutinized, and ‘heir role as employers over local

county employees would have caused the Sixth Circuit to come

to the conclusion that Judges Zieba and/or Basinski are, in their

capacities as administrators over county employees,

representatives of the county, not the state.

REASONS FOR GRANTING THE WRIT

This case presents for review a question of paramount

importance to all government employers, and employees who are

entitled to exercise their precious First Amendment freedoms of

uncoerced political belief and association and, most importantly,

the general public which relies on both the continued vibrancy of

the First Amendment freedom which undergirds our democratic

form of government and the efficient provision of government

services.

in Elrod v. Burns, 427 U.S. 347, 359, 96 S.Ct. 2673.

2683 (1976), this Court held that conditioning government

employment on the employee’s support for the favored political

party “unquestionably inhibits protected belief and association" in

violation of the First Améndment to the United States

Constitution. In Branti v. Finkel, 455 U.S. 507, 100 S.Ct. 1287,

63 L.Ed.2d 574, this Court clarified the existence of a narrow

exception to this general principle whereby political patronage

remains constitutionally permissible only if "party affiliation is an

appropriate requirement" for the employment position.

It is beyond dispute that this standard has resulted in

a tests applied by the different Courts of Appeal,

“inconsistent and unpredictable results" in litigation, and general

confusion for government employers and employees alike. See

e.g., Rutan v. Republican Party, 110 S.Ct. 2729. 2756-57 (1990)

(Scalia, J., dissenting).

The instant case, in which the issue is whether political

party affiliation is an appropriate employment requirement for a

hearing officer or referee, is an excellent vehicle for this Court

to provide much needed clarity. The instant case directly conflicts

with Roldan-Plumey v. Cerezo- Suarez, 115 F.3d 58 (ist Cir.

1997), and Meeks v. Grimes, 779 F.2d 417 (7th Cir. 1985). This

conflict between the Circuits goes beyond a mere conflict as to

result and embodies a deeper and pervasive conflict as to

the proper method of analysis: i.e., whether the "appropriate

requirement” criteria is an issue of fact or an issue of law.

This case also presents a second important issue for

—_—- — > ~Tevtew—by this Court. ti tis case-the-court-below failed to

perform the factual analysis required by this Court in McMillian

v. Monroe County, Alabama, 65 L.W. 4403 (1997) in order to

determine whether the administrative judge who terminated

Petitioner's employment was acting as the final policymaking

decision maker for Lorain County or the State of Ohio. The court

below, by basing its decision on the status of Respondent as a

judge rather than his status as a County Administrator with

supervisory authority over county employees, such as petitioner,

thereby created a conflict with numerous decisions of other

United States Courts of Appeals which have addressed this issue

and, as a result, inappropriately expanded the scope of Eleventh

Amendment immunity.

For the reasons set forth mcure fully below, David

Mumford respectfully requests that this Honorable Court issue a

writ of certiorari to the United States Court of Appeals for the

Sixth Circuit in this case in order to provide much needed

stability and clarity on these two issues of paramount public

importance which have engendered irreconcilable conflicts

between all federal courts of appeal.

#1 Whether, consistent with this Court’s holdings in

Branti v. Finkel, 455 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d

574, Rutan v. Republican Party of Illinois, 110 S.Ct. 2729

(1990) and O’Hare Truck Service, Inc. v. City-of Northlake,

116 S.Ct. 2353 (1996), and in direct conflict with decisions

from this Court and from other Circuits, the Sixth Circuit

erred in holding that a government position was inherently

political as a matter of law, when the Defendants admit and

all the facts demonstrate that political affiliation was not an

appropriate requirement for the position?

This Court decided Elrod v. Burns, 427 US. 347 (1976)

as a benchmark case twenty one years ago. Then, seventeen years

ago, this Court decided Branti v. Finkel, 455 U.S. 507, 519-520

(1980) holding that the "First Amendment forbids government

officials to discharge...public employees solely for not being

supporters of the political party in power, unless party affiliation

is an appropriate requirement." Rutan v. Republican Party, 110

S.Ct. 2729, 2732 (1990), citing Branti v. Finkel, supra.

In Branti v. Finkel, 455 U.S. at 524, 100 S.Ct. at 1297-

98, Justice Powell predicted that problems in application of this

Court’s holding would result because: "The standard articulated

by the court [in Branti] 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." 445 U.S. at 524, 100 S.Ct. at

1297-98.

Eleven years later Justice Scalia pointed out that Justice

Powell’s prediction was prophetic, that "[t]he Courts of Appeal

have devised various tests for determining when ‘affiliation is an

appropriate requirement’ and _ that ‘[t]hese interpretations

are...significantly at variance with each other." Rutan yv.

Republican Party, 110 S.Ct. at 2756. (dissenting opinion)

Of course, not only judges and elected and appointed

officials are confused, but also thousands of public employees are

unsure of whether they have protection under the Constitution of

the United States. Parties on both sides of the issues of who is

1]

protected and who is not [and when], and what clearly

established law exists [and when], need clarification after almost

two decades after Branti.

~— —Wth-se- many confitcts in so- many areas, itis apparent -

that both defendant public officials and plaintiff public employees

are entitled to have the method of applying the Branti test

clarified.

The test initially was created by this Court in Elrod in

1976 and changed in Branti in 1980. For the last seventeen years,

there has been no benchmark case clarifying the problems that

have developed as a result of the circuit courts’ interpretations of

both Elrod and Branti. The conflicts in application of the Branti

test that exist between the circuits makes this case a perfect

vehicle for this Court to give much needed instruction and

clarification needed by public office holders and employees.

Circuits conflict as to whether the analysis should be

based on law, based on fact, based on job description, based on

job responsibilities, based on job category, based on inherent

duties, based on statutory duties, based on relative pay, technical

competence, power to control others, authority to speak in the

name of policy makers, public perception, influence on programs,

contact with elected officials, responsiveness to partisan politics

and political leaders and whether the responsibilities of the

position are not well defined or are of broad scope. [See "A

Decade of Branti decisions: A Government Official’s Guide to

Patronage Dismissals", The American University Law Review,

Vol. 39:11, Susan Lorde Martin, p. 26] The waste of resources,

the expansion of litigation and the burdens to the judicial system

at every level beg for guidance and clarification of the Branti test

from this Court.

There is a significant, longstanding split between the

Circuit Courts of Appeals as to whether the analysis of a public

employee’s position as falling under the protections of Branti is

“TO be viewed-as FqUEStion of law or a question of fact.

Circuit courts finding that this is a question of law are as

follows: Ness vy. Marshall, 660 F.2d 517. 522 (3rd Cir., 1981)

(where, as a matter of law, a person is determined to have

Occupied a policymaking position, that person’s claims to

protection under Elrod and Branti are disposable on summary

judgment]; Mumford vy. Basinski, 105 F.3d 264, 27] (6th Cir.

1997) [although unique duties are typically fact driven.

characterization of general or specific duties are a question of

law]; and Bauer y. Bosley, 802 F.2d 1058, 1062 (8th Cir., 1986)

[on the facts before us the SLA II position is excepted from the

rule of Elrod-Branti as a matter of law.] The Bauer Court’s next

comment, at 1062, is indicative of the need for an Elrod-Branti-

Mumford trilogy from this Court, that "courts themselves have

disagreed whether the determination is one of law or fact See

Horton v. Taylor, 767 F.2d 471. 478 (8th Cir. 1985) and cases

cited therein."

Circuit courts, and the apparent majority of the circuits,

finding that this is a question of fact are as follows: Mendez-

Palou y. Rohena-Betancourt, 813 F.2d 1255, 1258 (lst Cir.

1987) [fact-specific nature of the analyses performed by these

other courts makes it difficult in any given case to decide the

merits solely on the basis of precedent]; Rodriguez-Burgos vy.

Electric Energy Authority, 853 F.2d 31, 37 (Ist Cir., 1988) [there

remains, in our view an important factual dispute about whether

or not the job requires PDP affiliation for effective performance];

Zold v. Township of Mantua, 935 F.2d 633. 635 (3rd. Cir., 1991)

13

[each decision is, of course, fact specific for that case]; Stott v.

Haworth, 916 F.2d 134, 145 (4th Cir., 1990) [case by case,

position by position, activity by activity analysis required for just

adjudication]; Nekolny v. Painter, 653 F.2d 1164, 1169 (7th Cir.,

1981) [the determination of status as a policymaker in many

cases presents a difficult factual question]; Soderbeck v. Burnett

County, Wis., 752 F.2d 285, 288-289 [rejecting defendants

argument that whether loyalty is essential is always a question of

law] (7th Cir., 1985)]; Meeks v. Grimes, 779 F.2d 417, 420

[noting that it was not possible to state categorically that bailiffs

are confidential employees as a matter of law] (7th Cir., 1985);

Lohorn v. Michal, 913 F.2d 327, 335 (7th Cir., 1990) [district

court erred in concluding that, as a matter of law, the statutory

label alone rendered Mr. Lohorn a "policymaker" within the

meaning of the Elrod-Branti exception to politically motivated

dismissals]; Matlock v. Barnes, 932 F.2d 658, 663 (7th Cir.,

1991) [by its nature, the question of whether a job is

policymaking or confidential is often factual]; Zorzi v. County of

Putnam, 30 F.3d 885, 893 (7th Cir., 1994) [whether Meeks

exempts Hansen from the requirements of E/rod-Branti therefore

requires a factual inquiry into whether Hansen and Zorzi’s

working relationship was intimate and involved direct and

constant contact]: Horton v. Taylor, 767 F.2d 471, 479 (8th Cir.

1985) [the legal standards to be applied by the district court

depend on these preliminary factual findings] and Terry v. Cook,

866 F.2d 373, 377-378 (11th Cir., 1989) [loyalty to an individual

sheriff as an appropriate requirement for effective job

performance has not been established [and] is a determination

[that] depends on the actual responsibilities of each position and

the relationship of each to the sheriff].

The Court in Horton vy. Taylor, 767 F.2d 471, 478 (8th

Cir. 1985) saw five years after Branti the confusion Justice

Powell predicted that "...courts [would] disagree whether such

determinations are matters of fact or of law--and are also aware

of the implications of this issue for the degree of deference we

must pay the district court’s determinations. See Fed.R.Civ.P.

52(a)."

The positions afforded protection and those denied

protection create the same deepening rift between the circuits as

to the types of positions protected. A sheriff in one circuit may

be protected, and not in another. A referee/hearing examiner is

protected in one circuit, and not in another.

Examples of this disparity in job title/job function as to

who is protected and who is not, between the circuits, follows:

Job Title Protected Not Protected

Attorney 2nd Cir.’ 3rd Cir.’

Tavano v. County of Niagra, 800 F.2d 1128 (2nd Cir.. 1986)

affirming district court at 621 F. Supp. 345 (W.D.N.Y., 1985).

3 Ness v. Marshall, 660 F.2d 517, 522 (3rd Cir., 1981).

15

Job Title Protected Not Protected

Deputy Sheriffs 4th Cir.’ 7th Cir.°

3rd Cir.° Sth Cir.’

10th Cir.* 11th Cir.’

Sth Cir."° 7th Cir."'

Bailiffs 7th Cir.'? 6th Cir."

Referee/Hearing

Examiner Ist Cir." 6th Cir."

* Jones v. Dodson, 727 F.2d 1329 (4th Cir., 1984)

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

Burns v. County of Cambria, Pa., 971 F.2d 1015 (3rd

Cir. 1992)

McBee v. Jim Hogg County, Texas, 730 F.2d 1009 (Sth

Cir., 1984)

* Dickeson v. Quarberg, 844 F.2d 1435 (10th Cir., 1988),

involving deputy head jailer to sheriff.

Terry v. Cook, 866 F.2d 373 (11th Cir., 1989)

© Barrett v. Thomas, 649 F.2d 1193 (5th Cir., 1981)

'' Dimming v. Wahl, 983 F.2d 86 (7th Cir., 1993)

‘> Meeks v. Grimes, 779 F.2d 417 (7th Cir., 1985)

'° Balogh v. Charron, 855 F.2d 356 (6th Cir., 1988)

'* Roldan-Plumey v. Cerezo-Suarez, 1997 U.S. Lexis 13050.

'S Mumford v. Basinski, 105 F.3d 264 (6th Cir., 1997)

16

———e

ee ee ee eeey

Petitioner submits that proper application of the Brantj

analysis should produce such inconsistent results because the

analysis must be based on facts, not mere job titles. The consis-

tency that is needed is that all circuits should scrutinize cases

based on a factual analysis of the inherent duties of the position,

not based on a mere legal and superficial analysis of job titles.

Instead, the determination as to the propriety of a poli-

tical affiliation requirement for a particular position should be

based on what the persons in the actual job does for the parti-

cular employer. Since not every government office operates in

the same way, it is only to be expected that persons with the

same job titles in different communities have different responsi-

bilities. Therefore, a person occupying a position of court referee

in One jurisdiction may have duties that would lead to legitimate

considerations of political affiliation, while a person with that

title in another jurisdiction may have duties of a purely non-

political nature so that political affiliation should, pursuant to the

First Amendment, play no part in the decisions made regarding

his employment. The Court in Meeks v. Grimes, 779 F.2d 417.

420-21, n.2 (7th Cir. :985), accordingly, found that "job

responsibilities and duties can vary greatly between different

governmental units and or even within a governmental

unit...[therefore]...the test under Branti must be applied to each

individual office, and status under that formulation is left to the

trier of fact to be determined."'®

‘© Another conflict exists between the instant case and Meeks.

Meeks involved referees reporting to one judge. The Court found the

referees were protected because they did not have everyday contact

with judges in their chambers. Meeks, at 417, 423. In the instant Case,

17

The instant case could be viewed, ironically, as lending

some predictability to the process, since it is based on a

hypotethical job description of how a referee operates. Under its

analysis, any person with that job title would not be protected,

regardless of what their job duties are.

This analysis runs counter to the manner in which most

circuits follow this Court’s teachings in Elrod, Branti, and Rutan.

The Sixth Circuit’s analysis leads to inconsistency and

unpredictability among the Circuits.

Moreover, the Sixth Circuit decision allows a government

employer too much leeway determining which employees are

protected by the First Amendment. Simply by labelling the

employees’ job titles, the employer can take away constitutionally

protected rights. The mode of analysis utilized by the Sixth

Circuit should not be utilized.

Instead, the principles pronounced in this Court’s prior

decisions should be reaffirmed and further clarified so that

government employees will be able to predict whether their

careers are subject to political patronage by reference to what

they know to be their legitimate job duties, and so government

employers will know the boundaries of their employment powers.

Justice Scalia observed in Rutan v. Republican Party of

Iilinois, 110 S.Ct. 2729, 2756-2757 (1990) after citing a number

of job categories, like the above, where protection is

inconsistently applied and withheld by the different circuits,

that "this summary should make it obvious that the ‘tests’ devised

the referees reported to two judges, of different parties, Apdx. D, p.

11., and, in spite of this fact, were viewed as not protected by the

instant 6th Circuit decision.

to implement Branti have produced inconsistent and

unpredictable results." Petitioner is in agreement with what

Justice Scalia points out next. at 2757, that

"...the current doctrine leaves many employees

utterly in the dark about whether their jobs are

protected, they are likely to play it safe. On the

other side, the exception was designed to permit

the government to implement its electoral

mandate...unless the government is fairly sure

that dismissal is permitted, it will leave the

politically uncongenial official in place, since an

incorrect decision will expose it to lengthy

litigation and a large damage award, perhaps

even against the responsible officials personally.

When looking at the referee position in question, which involves

simultaneously recommending findings of fact and conclusions of

law to two judges of different parties sitting in the most

"impartial" of government positions, the observation Justice

Scalia’s made in Rutan is central: "if there is any Category of

jobs for whose performance party affiliation is not an appropriate

requirement, it is the job of being a judge, where partisanship is

not only unneeded but positively undesirable." /d. at 2746. If this

is true for judges, it is true for their impartial referees.

This Court in O'Hare Truck Service, Inc. v. City of

Northlake, 116 S.Ct. 2353, 2358 (1996) found that the Branti

standard required a case-by-case fact based application. A fact-

driven analysis is the only fair analysis when applying Branti

because whether party affiliation is an appropriate requirement

for the position necessarily must turn on the facts of each

situation. Again, as in this case. the position involved reporting

19

simultaneously to two judges of different parties. How can this

undisputed fact be ignored in favor of non-record based

assumptions inferred by the Circuit Court in this case reading

between the lines of various civil rules? At Apdx. A, p. 22, the

6th Circuit, based on a review of Ohio Civil Rule 53, infers, with

no reference to any evidence in the record, that "unquestionably,

the inherent duties of an Ohio domestic relations court referee

entail a relationship of confidence between the referee and the

judge(s) he serves. The referee is privy to confidential litigation

materials and internal court communica-tions in the discharge of

his duties, and further maintains a confidential relationship with

the judge(s) which he serves." This "unquestionable" conclusion,

however, flies in the face of the undisputed facts and testimony

in this case, and is wholly drawn from inference not based on

evidence in the record. No evidence exists in the record that

Petitioner was privy to "confidential litigation materials” or

"internal court communications.” None are identified. None exist.

Further, no "confidential" relationship exists--no one in this case

disputes that the referee position in question reports

simultaneously to two judges of different parties. No confidential!

relationships exist. None have been identified.

The instant case employed an analysis that took the issue

that Mumford’s referee position was not a political position from

the trier of fact, the district court, that had already decided the

issue in 1992, and made a sweeping, non-record-based decision

that did not utilize the application of Branti to the individual

office, but rather, as indicated above, made the assumption that

"friction and animosity" were probable expectations that would

creep into the situation. Apdx. A, p. 19. This was not in the

record. There were two judges to report to from different political

20

Sees a ara

parties: Administrative Judge Zieba, a Republican: and alternating

Administrative Judge Basinski, a Democrat. See Apdx. V, p.1,

testimony of referee Frank Giamboi.

The instant case conflicts with Meeks v. Grimes, 779 F.2d

417, 420-421, n.2 (7th Cir., 1985), in that the Meeks court ruled

that "...it is impossible to generalize about the nature of an

individual type of position, such as bailiff or secretary; job

responsibilities and duties can vary greatly between different

governmental units or even within a governmental unit...For this

reason the test under Branti must be applied to each individual

office, and status under that formulation is left to the trier of fact

to be determined.” The instant case makes no such application to

the referee position in question.

Meeks, at 420-421, and n.2 also rules that it cannot

conclude that "bailiffs" are confidential employees as a matter of

law because bailiffs are duty-bound to protect the sanctity of the

court, and, "...while political affiliation may be an acceptable

proxy for loyalty, trust, and maybe even efficiency, it would cast

the net of the Elrod exception too wide to allow political support

to be used to extrapolate a tendency to breach a sworn duty,

behave unprofessionally, or commit criminal acts."

In addition, in Meeks at 423. n.7, the 7th Circuit wrote

that "[w]Jhat may distinguish judges for patronage purposes is the

unique relationship they have with the people who work with

them in their chambers. However, differing structures of judicial

Systems and governments mean that each case is unique and an

intimate working environment may or may not exist surrounding

any political hiring authority."

The problem with a purely legal analysis is that it ignores

the realities of the position in question, and allows for inferences

2]

~~

based on "law" that arrive at "fact" that is not in evidence in the

record.

The instant case also is in direct irreconcilable conflict

with Roldan-Plumey v. Cerezo-Suarez, 115 F.3d 58 (lst Cir.

1997). In Roldan-Plumey v. Cerezo-Suarez a hearing examiner’s

position was found by the First Circuit to involve inherent duties

of holding hearings, evaluating evidence, carrying out legal

studies and issuing recommendations to a commissioner. This is

absolutely no different than what David Mumford did for the

Lorain County Court--he conducted hearings, evaluated evidence

and made recommendations to the judges of the court. Yet the

6th Circuit found Mumford’s position taking and analyzing

evidence and making recommendations of findings of fact and

conclusions of law to county judges to be a political position. As

Justice Scalia has observed, how can party affiliation enter into

such decisions, deci: 1s that require impartiality?

The First Circuit’s decision in Roldan-Plumey v. Cerezo-

Suarez appropriately made a factual inquiry and looked only to

the inherent duties of the position and found that they involved

discrete technical and professional duties, and that the position

was not a political position. The Roldan-Plumey court made

specific findings that the "Examining Officer" held hearings, took

oaths and declarations, evaluated evidence regarding conclusions

of fact and law, carried out legal studies and _ issued

recommendations to the Commissioner. These are the very duties

performed by Mumford.

The instant case clearly made no such detailed, factual

inquiry. Instead, it arrives at conclusions not supported by record

evidence. For instance, it found that Mumford had access to

confidential court documents and was in a personal confidential

“ $0 Sefer, Canis ikea’

Ae tenia enchants Meh ca PL ce BLN

relationship. Apdx. A, p. 22. There is absolutely nothing in the

record to support this conclusion. In fact, all the evidence is to

the contrary.'’

Thus, the Roldan-Plumey decision of the |st Circuit is in

direct conflict with the instant case and with Meeks.

The Branti v. Finkel plurality held that “conditioning

public employment on the Provision of support for the favored

political party ‘unquestionably inhibits protected belief and

association.’" Rutan, 110 S.Ct. at 2734, quoting Branti at U.S.

259, S.Ct. 2683.

This Court also has recognized that "a government has a

significant interest in ensuring that it has effective and efficient

employees." Rutan at 110 S.Ct. 2734, citing Branti at U.S. 259,

S.Ct. 2683.

Petitioner respectfully submits that it is imperative that

the Branti exception, whereby political affiliation may be used as

an employment criteria only if it is an “appropriate requirement

for the position involved." be clarified by this Court in order that

the interests of the general public, government employers and

government employees are no longer frustrated.

This type of analysis was specifically rejected by the Circuit

Court in Meeks vy. Grimes, 779 F.2d 417, 423 (7th Cir. 1985): "[wle

will not engage in the Process of inferring a breach of duty from

political opposition where the record does not even Clearly support a

finding that these bailiffs had routine access to sensitive documents."

23

#2 Whether, under McMillian v. Monroe County,

Alabama, 65 L.W. 4403 (1997), a county is

liable for the administrative acts of an

administrative judge for a county common

pleas court acting in the particular area or

issue regarding employment decisions for a

local government?

The decision in the instant case was rendered prior to this

Court’s recent decision involving a government official and the

11th Amendment. McMillian v. Monroe County, Alabama, 65

L.W. 4403 (June 2, 1997). In McMillian this Court held that the

sheriff of an Alabama county, when acting in his law

enforcement capacity, was a state official immune to suit for

actions taken in that capacity pursuant to the Eleventh

Amendment. What is instructional is not the result in McMillian,

but, rather, the analysis. McMillian heli that "[o]ur cases on

liability of local governments under Section 1983 instruct us to

ask whether governmental officials are final policymakers for the

local government in a particular area, or on a particular issue."

Id. at 4405, quoting Jett v. Dallas Independent School District,

491 U.S. at 738, 109 S.Ct. 2702 (1989) (court must identify

‘those officials who have the power to make official policy on a

particular issue.(emphasis added)."

Zeiba, as administrative judge, was a final policymaker

when making personnel decisions for the entity, Lorain County.

Zieba ran the domestic relations court. Lorain County

Commissioner Jacoby testified that "all the elected officials in

Lorain County, do their own hiring, set their own policies, make

all their own decisions, with the exception of their budget.

That’s the only area of control we have over the departments."

24

Sa Rainn mo.

Apdx. W, p.1. Commissioner Jacoby also testified that all the

employees who work at the Domestic Relations Court are

employees of Lorain County, including the judges and that

Judges Basinski and Zieba and the court referees receive their

paychecks from the Lorain County Auditor, Apdx. W., p.2.

Therefore Judge Zieba was the administrator and final policy-

maker for the County of Lorain when making employment

decisions. '*

The instant 6th Circuit decision never addresses or makes

findings as to whether, in the performance of his duties as an

administrator over Lorain County employees, Judge Zieba was a

final policymaker for the county or state as to his administrative

duties regarding Lorain County employees working for the court.

This Court in McMillian y. Monroe County, Alabama, 65 LW

4403 (June 2, 1997) spells out that "...the question is not whether

Alabama sheriffs act as county or state officials in all of their

official actions, but whom they represent in a particular area or

on a particular issue,"

Rather than performing this analysis which is focussed on

the nature of the particular actions in question, the Sixth Circuit’s

analysis is the sort of "...all or nothing..." analysis rejected by this

Court in McMillian, 65 L.W. at 4404.

Instead, at Apdx. A, p.7, the court believed that "[t]he

central inquiry confronting this appellate review is whether the

‘’ The instant case, at Apdx. A-12 attempts to imply that "state"

money from some "special court fund" pays these county referees. This

is not true, and Ohio Revised Code Section 2151.13 (Apdx. J-18)

merely indicates that judges and employees of this court will be paid by

the county treasurer. Nowhere in the record is there evidence that state

money pays county referees.

ho

Wa

Domestic Relations Court is a state of Ohio entity, or instead is

an appendage of the Lorain County government, for section 1983

purposes.” The court in the instant case concluded that because

local courts are created by state law, because the State Supreme

Court has supervisory authority over local courts, because state

statutes outline the jurisdiction of local courts and because

counties are required to provide funds for local courts, therefore

they are components of state government. [Apdx. A, pp. 7-16]

Che Sixth Circuit implies, without stating, that these factors make

the administrative judge a state official for all purposes and in all

areas in which he makes any type of decision, even non-judicial

administrative employment decisions. This analysis totally ignores

the McMillian question to be asked: which governmental body

did Judge Zieba represent on a particular issue or in a particular

area? While acting in a judicial capacity, the judge may be

representing the state, but the issue here is who he represents

when making employment decisions regarding Lorain County

employees. In this area, Zieba represented the County. This issue

was ignored in the instant case.

Other circuits have anticipated McMillian, and thus are

in conflict with the Sixth Circuit. The Fifth Circuit Court of

Appeals in Familias Unidas v. Briscoe, 619 F.2d 391, 404 (Sth

Cir., 1980) ruled that there were many actions of a county judge

that justifiably could be considered to constitute or represent

county "policy" and that in addition to judicial duties, a Texas

county judge was charged with the performance of numerous

executive, legislative and administrative chores in the day-to-day

governance of the county and concluded that "...at least in those

areas in which he, alone, is the final authority or ultimate

repository of county power, his official conduct and decisions

ne en la i St

must necessarily be considered those of one ‘whose edicts or acts

may fairly be said to represent official policy’ for which the

county may be held responsible under section 1983." This

analysis conflicts with the instant case.

Decisions from other circuits also conflict with the 6th

Circuits approach: Parker y. Williams, 862 F.2d 1471, 1479 (11th

Cir., 1989) [one official may exercise county authority over some

matters and state authority over other matters]; Davis v. Ector

County, Tex., 40 F.3d 777. 784 (Sth Cir., 1994) [although the

district attorney’s office (like Ector County itself) is a creation of

the state, all of its functioning is county based]; Harter vy.

Vernon, 101 F. 3d 334, 342 (4th Cir., 1996), [Rockingham

County Sheriff not a state official because the state treasury

would not pay any judgement]; and Lucas v. O Loughlin, $31

F.2d 232, 234-235 (11th Cir.. 1987) [Where sheriff's salary and

deputies are paid out of county funds, where county

commissioners budgeted the money for the sheriff's department,

where the sheriff was elected under state law to serve the county

as sheriff in the capacity of employer over his deputies, sheriff's

actions were actions of the county'”].,

Though the judges of Lorain County Common Pleas

Court can travel to other counties to hear cases, they cannot

travel to other counties to fire county employees in other

counties. Under the McMillian analysis, the Lorain County judges

'' The court in the instant case found that domestic relations

judges are elected by county voters and that the county must fund the

court with Lorain County funds. Apdx. A, pp. 12-13 and Apx. D, p.

3. No record based finding was reached in the instant case that a

judgment in this case would be paid out of the state treasury.

27

cannot represent the state as to the particular area or issue

regarding employment decisions for a Lorain County local

government, since their power to hire and fire stops at the county

line.

As the Court in Eggar v. City of Livingston, 40 F.3d 312,

315 (9th Cir., 1994) pointed out, "...officials can act on behalf of

more than one government entity. Owens v. Fulton County, 877

F.2d 947, 952 (llth Cir. 1989)." Judge Zieba, in his

administrative capacity in hiring and firing court employees,

acted on behalf of the local political subdivision, Lorain County.

In Van Ooteghem v. Gray, 774 F.2d 1332, 1337 (Sth Cir., 1985)

the Fifth Circuit appropriately pointed out that "[w]hatever state

duties a County Treasurer may have, we are persuaded that in the

personnel matters at issue here, Gray was wearing his county

hat." Could Judge Zieba by assignment hear a case in Cuyahoga

County rather than Lorain County? Of course. Could Lorain

County Domestic Relations Court Judge Zieba fire Cuyahoga

County Domestic Relations Court employees? Of course not. In

fact, it is demonstrative that the Lorain County Prosecutor, rather

than the Ohio Attorney General, represented this "county"

defendant throughout the proceedings. The reverse would have

been the case if defendant was clearly a "state" entity. It is

logical, therefore, to assume that it would be the county that

would be paying any damages should Mr. Mumford prevail.

Therefore, Judge Zieba was not acting in a state capacity,

but rather, when wearing his administrative hat, was acting as a

local County official, and therefore suable in his official capacity

under 42 U.S.C. Section 1983, creating liability for Lorain

County.

In light of this conflict between the analysis of the Sixth

Circuit and that of other circuits, and in light of the fact that the

Sixth Circuit did not have the benefit of this Court’s McMillian

decision, at the very least, this case should be remanded to the

lower courts for reconsideration of this issue.

In addition, even if the administrative judge of the court

was acting as a state official when making personnel decisions,

the Eleventh Amendment would not mandate dismissal of the

complaint since that Amendment does not prevent the injunctive

prospective relief of reinstatement”’. Petitioner Mumford stil]

seeks reinstatement and backpay.

The instant case also misinterprets two of this Court’s

opinions, Ex Parte Young, 209 U.S. 123 (1908) and Green v.

Mansour, 474 U.S. 64, 68, 88 L.Ed.2d 371. 106 S.Ct. 423, 426

(1985). Footnote 8 of the instant case (Apdx. A, pp. 15-16)

theorizes that the invocation of Young for prospective relief only

cannot be salvaged because Mr. Mumford has joined with this

request a prayer for retrospective relief. obviously backpay. The

instant opinion, in this regard, relies on Green v. Mansour, 474

U.S. 64, 68, 88 L.Ed.2d 371, 106 S.Ct. 423 (1985). Yet nowhere

in Green v. Mansour did this Court make such a ruling. What

this Court did was to state that "the Eleventh Amendment does

not prevent federal courts from granting prospective injunctive

relief to prevent a continuing violation of federal law...(and

that)...[rjlemedies designed to end a continuing violation of

°° Once the record has been developed to show that no judgement

in this case would come from state funds, backpay would also be

available. This issue is not part of the record and should be developed

below.

29

federal law are necessary to vindicate the federal interest in

assuring the supremacy of that law." /d., at 68. There is no

language in Green v. Mansour that could lead to a conclusion

that "joining" a request for prospective and retroactive relief

defeats a valid claim for prospective relief. Therefore, the court

in the instant case clearly erred in failing to remand this case for

trial on the issue of reinstatement. As long as Mumford is not

reinstated, the unconstitutional violation continues. Rein-statement

is the only prospective remedy to cure that violation.

The instant decision must be remanded with instructions

to follow this Court’s analysis in McMillian, or reversed, in order

to limit the application of the 1 1th Amendment to true actions of

the state as to the particular issue or area involved. Anything less

will allow local entities to escape their constitutional

responsibilities by labelling officials who truly are acting on

behalf of the local entity as state officials.

CONCLUSION

For the reasons set forth above, this Court’s standards for

granting certiorari, as set out in Sup. Ct. Rule 10.1 are well met

in this case. The petition should be granted.

Respectfully submitted,

DENNIS J. NIERMANN

KRAMER & NIERMANN, L.P.A.

3214 Prospect Avenue, East

Cleveland, Ohio 44115-2600

(216) 431-5300

30