Opposition Brief — Mills v. Meadows

No. 99-703

In THE

Supreme Court of the United States

OcTOBER TERM, 1999

MARLIN LEE MILLS,

Petitioner,

v.

JOSEPH P. MEADOWS, ET AL,

Respondents.

On PETITION FOR WRIT OF CERTIORARI TO THE

UnitTEpD StaTES CourT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION

Puiuip S. RoBERTS

Counsel of Record

Harford County Department of Law

220 S. Main Street

Bel Air, Maryland 21014

(410) 638-3205

Counsel for Respondents

Joseph P. Meadows and

Harford County, Maryland

SRE RETR A AY RPMI LN iS STEN LE RIEL EE ILE LO SOLA ITE TILT.

THE DAILY RECORD COMPANY, 11 EAST SARATOGA STREET, BALTIMORE, MD 21202

QUESTIONS PRESENTED FOR REVIEW

1. Did the Fourth Circuit properly apply the Elrod-Branti

analysis to the alleged patronage dismissal of a high

ranking Harford County deputy sheriff?

2. Was the Elrod-Branti analysis appropriate?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW..............:c::ce0ee i

TABLE OF CONT IICED ocvscsssissisctstvitsiaiscsicnetinttbesdiaibinsisa il

TABLE OF AUST RUBE Bit escssisiviapcsiitiencttaniisinandonsion ill

STATEMENT OF ‘THRE CABS oiseriticacitcetiscrintnnceienen 1

REASONS FOR DENIAL OF THE PETITION FOR

CHER T ORRA RE oaesssssicisiccinsininiicetieseanasisaiaiancdalasiebiisliaiiaiess 3

l. The Fourth Circuit Properly Applied 7

Elrod-Branti AnalySIs................:ccsscceeteeseee 4

3 The Elrod-Branti Analysis Was Appropriate

ln Tihs Cla osc: cceessictstedntasaicteniieniieetniened 10

CONCLUSION ...2:sssseissinensunsenasaiiiiensecniniiene paaeanianal 12

il

TABLE OF AUTHORITIES

Cases

Branti v. Finkel, 445 U.S. 507 (1980) ........cccccsessseeeees passim

Burns v. County of Cambria, 971 F.2d 1015

CP a TO i ai ski Sa ateasssnecieninsictnai 6,9

Connick v. Myers, 461 U.S. 146 (1983) ......:ccsceseeseereereeeee 11

Dickson v. Quarberg, 844 F.2d 1435 (10" Cir. 1988)........... 6

Elrod v. Burns, 427 U.S. 347 (1976).......::cccccssesssseeeeees passim

Fazio v. City of San Francisco, 125 F.3d 1328

Oe a es incesinscsrensiaiocessven 6

Hall v. Tollett, 128 F.3d 418 (6" Cir. 1997) .......ceseeseseees 6, 10

Jenkins v Medford, 119 F.3d 1156 (1997) (en banc),

cert. denied 118 S.Ct. 881 (1998)........... cece 6,7,9

Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236

(1* Cir. 1986), cert. denied, 481 U.S. 1014 (1987) ... 6

MacMillian v. Monroe County, Ala, 520 U.S. 781

O’Hare Truck Services v. City of Northlake, 518 U.S.

FE a niiidacnnnicininsicaithinnctaknntacadshatnbiesdveds 11, 12

ill

Pickering v. Board of Education, 391 U.S. 563 (1968)...... 11

Rucker v. Harford County, Md., 558 A.2d 399

WT ee ee 1,8

Terry v. Cook, 866 F.2d 373 (11 Cir. 1989) wo..cceeeeeeeee. 6,9

Tomczak v. City of Chicago, 765 F.2d 633 (7" Cir.),

cert, denied, 474 U.S. 946 (1985) sessecscsssceccccoseesssse 6

Zepp v. Rehrmann, 79 F.3d 381 (4™ Cir. 1996) ........ccscseeeeeee 2

Constitutional Provisions

Ste CR: MI si caisasisinticdscenctdiiininsenidaboniel Passim

Statutes

Oe Vides RIED ssitinniasincdssdeapieaiiniinianih meee ms 3

urt Ru

Foust Circuit Local Bathe B66) .cccscsssecassssichadciatssreccestearsarves 8

iV

No. 99-703

In THE

Supreme Court of the United States

OcToOBER TERM, 1999

MARLIN LEE MILLS,

Petitioner,

V.

JOSEPH P. MEADOWS, Er AL,

Respondents.

On PETITION FOR Writ OF CERTIORARI TO THE

Unitep States Court oF APPEALS FOR THE FourtH CIRCUIT

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Petitioner, Marlon Lee Mills (“Mills”), appealed from an

Order of the District Court of Maryland granting summary

judgment to Respondents. The Opinion and Order concluded

that Sheriff Joseph P. Meadows (“Meadows”) could terminate

Mills, a high-ranking deputy sheriff in Harford County,

Maryland, on the basis of his political affiliation without

violating the First Amendment. Pet. App. A-7 to A-18. The

Fourth Circuit Court of Appeals affirmed in an unpublished

opinion.' Pet. App. A-1 to A-6. The facts developed in the

summary judgment record are set forth viewed in the light most

favorable to Mills.

In 1971, Robert Coomes (later Sheriff Coomes) hired

Mills as an entry level deputy with the Harford County Sheriff's

Office. J.A. 7,8. Over the years, Mills was promoted to the

rank of deputy first class, corporal, sergeant, lieutenant, and

finally captain. Mills received his last two promotions during

the administration of Sheriff Coomes, who was elected in 1990.

J.A. 61. As a captain in the Coomes administration, Mills was

a high ranking official. In a department of 230 deputies, Mills

was one of only seven captains and was exceeded in rank by

only four individuals, including Sheriff Coomes himself. J.A.

59-60, 64.

In 1994, Sheriff Coomes, a Democrat, ran for

reelection against Joseph P. Meadows, a Republican. Pet. 3. At

' Mills named Sheriff Joseph P. Meadows and Harford County as

defendants in this action. Harford County bears no liability as the sheriff is

an independent state officer and is not an agent or employee of the County.

Rucker v. Harford County, Md., 558 A.2d 399, 402, 406 (Md. 1989);

MacMillian v. Monroe County, Ala, 520 U.S. 781 (1997). Because the

County’s liability, if any, would have derived solely from Meadows’ action

in his official capacity, the lower Courts did not confront the County’s lack

of derivative liability.

the time, Mills was the President of the Harford County

Democratic Club. /d. Mills actively supported Coomes in the

election, displaying Coomes’ campaign sign and hosting a

fundraiser at the private swim and golf club owned by Mills.

J.A. 61-62, 105. Meadows defeated Coomes in the November

1994 general election, becoming the first Republican sheriff in

Harford County history. Pet. 2, 3.

In securing victory, Meadows’ campaign had pointed to

negative incidents and perceptions of mismanagement by the

Coomes administration. J.A. 59, 66-69. One major incident

involved the death of an inmate. /d. Although the death was

announced as a suicide, the inmate’s family suspected foul play

by deputy sheriffs and alleged sodomy and murder. /d.; See,

Zepp v. Rehrmann, 79 F.3d 381, 383-84 (4" Cir. 1996). The

case was settled during the Coomes administration for

$400,000.00. Jd. Although Mills denied any role, as the District

Court pointed out, “Meadows could proper[l]y interpret the

outcome of the election as a mandate for change, imposing upon

him the responsibility to put in place a management team that

could effect that change.” Pet. App. A-8.

Aside from being the first elected Republican Sheriff in

Harford County history, Meadows was a former prosecutor

without prior experience as a law enforcement officer. J.A. 60.

Thus it was all the more critical that Meadows put in place a

management team which he could trust to devise and implement

new policies reflective of his campaign promises to the

electorate. Jd. Towards this end, on December 6 and 7, 1994,

Meadows met with members of the upper level command staff

including Mills. J.A. 60-61.

During the meeting with Mills, Meadows explained that

he was unsure of Mills future status in the organization and

advised that he would make a decision in the near future. /d.

2

ee

Thereafter, Meadows learned that no member of the upper level

command staff wanted to work with Mills, and many lower

level deputies “expressed concerns about Mills’ police and

command acumen.” J.A. 61-63. Approximately two weeks

after the initial meeting, Meadows informed Mills that he had

decided not to reappoint him. J.A. 63, 106. Later that day,

Mills took early retirement effective January 1, 1995. J.A. 106.

Mills subsequently filed this action pursuant to 42

U.S.C. §1983, alleging that Meadows terminated him based

upon his political affiliation and campaign activities in violation

of the First Amendment. Both the District Court of Maryland

and the Fourth Circuit Court of Appeals concluded that

Meadows was entitled to summary judgment on this issue.

REASONS FOR DENIAL OF THE

PETITION FOR CERTIORARI

The Fourth Circuit correctly applied the precedents of

this Court to Meadows’ termination of Mills. No conflict exists

between the circuits with regard to the alleged political

discharge of a high ranking deputy sheriff in Harford County,

Maryland in 1994. No prior political affiliation case addressed

the dismissal of Harford County deputy sheriffs, much less

Mills’ particular position. State law and the role of deputy

sheriffs vary from state to state. The Fourth Circuit’s

unpublished decision in this case has very narrow application,

not extending beyond the analysis of Mills’ position in the

Harford County Sheriff's Office. Review of this limited fact

pattern, unlikely to be repeated, would lend no guidance to

lower courts; particularly where, as here, the case fits squarely

within the analytical framework of this Court’s prior precedents.

This case does not merit the scrutiny of this Court.

1. The Fourth Circuit Properly Applied The

Elrod-Branti Analysis.

In Elrod v. Burns, 427 U.S. 347 (1976), and Branti v.

Finkel, 445 U.S. 507 (1980), this Court determined that the

dismissal of government employees based upon their political

affiliation was unconstitutional, subject to certain exceptions.

At the time of these decisions, the tradition in many political

subdivisions was to staff public offices with patronage

appointments in the wake of elections. Elrod and Branti

limited this practice to certain public offices, thereby curtailing

widespread patronage.

In Elrod, employees of the Cook County, Illinois

Sheriff's Office claimed that a newly elected sheriff violated

their First Amendment rights when he laid them off because

they were not members of the “proper” political party. By a

plurality, the Court found that a “non-policy making, non-

confidential government employee can[not] be discharged or

threatened with discharge from a job that he is satisfactorily

performing upon the sole ground of his political beliefs.” Elrod,

427 U.S. at 375 (Stewart, J. concurring). However, the Court

simultaneously carved out an exception permitting patronage

dismissals of employees holding “policymaking” positions. Jd.

at 367. The Court remanded the case for consideration of

whether any of the discharged employees qualified as

policymakers. Jd. at 368. The rationale for the Elrod

policymaker exception related to the public need to insure

representative government responsive to the electorate.

A second interest advanced in support of

patronage is the need for political loyalty of

employees, not to the end that effectiveness

and efficiency be insured, but to the end that

representative government not be undercut by

tactics obstructing the implementation of

policies of the new administration, policies

presumably sanctioned by the electorate. The

justification is not without force, but is

nevertheless inadequate to validate patronage

wholesale. Limiting patronage dismissals to

policymaking positions is sufficient to achieve

this governmental end. Nonpolicymaking

individuals usually have only limited

responsibility and are therefore not in a

position to thwart the goals of the in-party.

Elrod, 427 U.S. at 367.

In Branti v. Finkel, 445 U.S. 520 (1980), the Court

revisited the issue of patronage dismissals. Finding that

assistant public defenders in Rockland County New York could

not be subject to dismissal on the grounds of political affiliation,

the Branti decision refined the “policymaker” exception

described in Elrod. oe

In sum, the ultimate inquiry is not whether the

label “policymaker” or “confidential” fits a

particular position; rather the question is

whether the hiring authority can demonstrate

that party affiliation is an appropriate

requirement for the effective performance of

the public office involved.

Branti, 445 U.S. at 518.

Branti requires courts to analyze “the public office

involved” to determine as a matter of law whether political

affiliation is an appropriate requirement for that particular

position. The assistant public defenders in Branti ha “very

5

limited, if any, responsibility’ with respect to the overall

operation of the public defender’s office.” /d. at 511.

Therefore, their political affiliation was not an appropriate

consideration.’ Jd. at 519-20.

Both Elrod and Branti require that courts inquire on a

case by case basis whether political affiliation is an appropriate

consideration for the positions in question. Elrod, 427 U.S. at

367-68; Branti, 445 U.S. at 519. Following these precedents,

the Courts of Appeals, including the Fourth Circuit, focus on

the position involved to determine whether political loyalty or

affiliation are appropriate considerations. Jimenez Fuentes v.

Torres Gaztambide, 807 F.2d 236, 241-42 (1* Cir. 1986), cert.

denied, 481 U.S. 1014 (1987); McEvoy v. Spencer, 124 F.3d

92, 98 (2™ Cir. 1997); Burns v. County of Cambria, 971 F.2d

1015, 1022 (3™ Cir. 1992); Jenkins v Medford, 119 F.3d 1156,

163-4 (1997) (en banc), cert. denied 118 S.Ct. 881 (1998);

Hall v. Tollett, 128 F.3d 418, 423 (6" Cir. 1997); Tomezak v.

City of Chicago, 765 F.2d 633, 640 (7" Cir.), cert. denied, 474

U.S. 946 (1985); Fazio v. City of San Francisco, 125 F.3d

1328, 1332 (9" Cir. 1997); Dickson v. Quarberg, 844 F.2d

1435,-1442 (10" Cir. 1988); Terry v. Cook, 866 F.2d 373, 378

(11" Cir. 1989).

Neither Elrod, Branti, nor prior decisions from any

Circuit directly answer the question of whether political

affiliation is an appropriate requirement for a high ranking

deputy sheriff in Harford County, Maryland. Elrod concerned

non-law enforcement employees of the Cook County, Illinois

Sheriff. Elrod, 427 U.S. at 351. Moreover, this Court did not

? “This is in contrast to the broader public responsibilities of an official such

as a prosecutor. We express no opinion as to whether the deputy of such an

official could be dismissed on grounds of political party affiliation or

loyalty.” Branti, 445 U.S. at 519, n 13.

6

decide whether these positions were the type for which

political considerations apply, instead remanding the case for

consideration of the issue. Jd. at 368. Branti considered a

public defender’s position in Rockland County, New York and

thus also does not directly address the instant case. Branti,

445 US. at 508.

Nonetheless, the Fourth Circuit applied the Elrod-

Branti analysis in the instant case by examining Mills’

position as a high ranking deputy sheriff in Harford County,

Maryland. Pet. App. A-4. Both the District and Circuit Courts

below referred to the Elrod-Branti analysis conducted by the

Fourth Circuit en banc in Jenkins v. Medford, 119 F.3d 1156

(4" Cir. 1997) (en banc), cert. denied, 118 S.Ct. 881 (1998);

Pet. App. A-4, A-12.

In Jenkins, the Fourth Circuit reviewed the claims of

several deputy sheriffs against the newly elected Sheriff of

Buncombe County, North Carolina. The deputies, who

supported the Sheriff's political opponents during the

campaign, alleged that their terminations violated the First

Amendment. See, /d. at 1158-59.

Applying Elrod-—Branti, the Court considered “the

specific political and social roles of sheriffs and their deputies

in North Carolina” and noted that sheriffs in that state are

“important political figure[s]” who are responsible for

implementing a political agenda that has been approved by the

voters through the sheriff’s election. Jenkins, 119 F.3d at

1163. The Court observed that a North Carolina deputy sheriff

is the alter ego of the Sheriff, who can be held liable for a

deputy’s misconduct. Based upon these considerations, the

Fourth Circuit held that party affiliation was an appropriate

requirement for the office of a sworn law enforcement deputy

sheriff in North Carolina. Jd. at 1164.

7

In the present case, the Fourth Circuit noted that

Maryland, like North Carolina, considers a deputy sheriff to be

the alter ego of the sheriff. Pet. App. A-5; Rucker v. Harford

County, 558 A.2d 399, 402, 406 (Md. 1989). In fact, under

Maryland law, the sheriff and his deputy are considered one

and the same officer, exercising the same authority and

performing the same duties. Rucker, 558 A.2d at 406-7. In

addition to this substantial autonomy and discretion accorded

by law to Maryland deputies, the Fourth Circuit relied upon

the fact that Mills was a high ranking official. In a department

of two hundred thirty deputies, he was one of only seven

captains and exceeded in rank by only four individuals,

including the sheriff himself. Pet. App. A-5. The Petition

ignores this salient and dispositive fact.

Contrary to Mills’ assertion in his Petition, the Fourth

Circuit has not “provided sheriffs with the unfettered

discretion to dismiss deputies from another party.” Pet. 13.

The Fourth Circuit’s unpublished opinion in this case analyzes

only a single position, one of the highest ranking positions in

a department consisting of 230 deputies. Pet. App. A-5. That

unique analysis has narrow application and establishes limited

precedent. The Fourth Circuit’s unpublished opinion in the

present case has more narrow implications for deputy sheriffs

in Harford County than its prior published decision in Jenkins

has for deputy sheriffs in North Carolina. Aside from

disfavored status as an unpublished opinion,’ the Fourth

Circuit’s decision in Mills applies only to the highest ranking

Harford County deputy sheriffs.

* Fourth Circuit Local Rule 36(c) states that citation of unpublished

dispositions is disfavored except for establishing res judicata, estoppel, or

the law of the case.

The fact that courts in other jurisdictions have reached

“different” results does not warrant review by this Court. The

positions examined by courts in patronage dismissal cases vary

as widely as the procedural and substantive court records upon

which various decisions are based. The responsibilities of

deputy sheriffs vary from state to state, and county to county,

depending upon state and local law. Deputy sheriffs

encompass positions from clerical assistants to civil process

servers, jailers, security guards, or sworn law enforcement

officers. A deputy’s responsibility may range from performing

low level ministerial tasks, such as serving civil summons to

a high ranking official with substantial discretion and

autonomy like Mills.

For example, Jenkins applied only to North Carolina

deputy sheriffs actually sworn to engage in law enforcement

activities on behalf of the sheriff. Jenkins, 119 F.3d at 1165.

In Terry v. Cook, the Eleventh Circuit drew a distinction

between the Alabama chief deputy/deputies (the alter ego of

the sheriff empowered under Alabama law to enter into

business transactions for the sheriff) and clerks, dispatchers,

jailers and process servers working for the sheriff, remanding

for further consideration whether the responsibilities of the

latter positions required political loyalty to the sheriff. 7 erry

v. Cook, 866 F.2d 373, 377-378 (11" Cir. 1989). In Burns vy.

County of Cambria, 971 F.2d 1015, 1022 (3 Cir. 1992), the

Third Circuit concluded on the basis of the record before the

Court that Cambria County deputy sheriffs whose primary

duties were serving process, transporting prisoners, and

courtroom security did not have significant autonomy or

discretion in their jobs demonstrating the relevance of political

affiliation. The record before the Sixth Circuit was similarly

inadequate to establish that political affiliation was an

appropriate requirement for the effective performance of rank

and file Cumberland County, Tennessee deputy sheriffs

9

(noting that the sheriff may be able to establish this proposition.

affirmatively in future cases). Hall v. Tollett, 128 F.3d 418,

429 (6" Cir, 1997). However, the Sixth Circuit did find, in the

same case, that the Sheriff was entitled to select a chief deputy

who shared his political beliefs because the position had a high

level of discretion and authority. /d. at 425-426.

The record in instant case amply establishes that Mills’

position operated with sufficient discretion and autonomy to

warrant consideration of his political beliefs by Meadows. As

the District Court of Maryland observed:

As a captain, Mills was a highly placed

official in the Coomes administration. Though

he denies being a part of Coomes’ upper level

command staff, the record is clear that only a

handful of individuals within the 230 member

agency had attained an equal or higher rank.

As a result he necessarily served as a link

between the sheriff and the deputies in the

agency, and played a significant role in the

implementation of the sheriff's policies. Thus,

Meadows could lawfully terminate Mills for

political reasons under the Elrod-Branti

exception to prohibited political terminations.

Pet. App. A-13.

2. The Elrod-Branti Analysis Was

Appropriate In This Case.

Mills alleges that he was terminated for supporting and

associating politically with Meadows’ political opposition. J.A.

10. These are classic allegations of political patronage. The

10

tests in Elrod and Branti are specifically designed to deal with

such allegations.

However, Mills contends that in addition to the Elrod-

Branti analysis conducted by the Fourth Circuit, this Court

should grant review to determine whether the case should be

analyzed under Pickering v. Board of Education, 391 U.S. 563

(1968) and Connick v. Myers, 461 U.S. 146 (1983).

Pickering involved the dismissal of a high school

teacher in Will County, Illinois for openly criticizing the

local Board of Education for its handling of revenue raising

proposals. Pickering, 391 U.S. at 564. Connick involved the

dismissal of an assistant district attorney in New Orleans,

Louisiana for circulating a questionnaire concerning several

internal office issues including whether employees felt

pressure to work in political campaigns. Connick, 461 U.S.

141. Thus, Connick and Pickering involved free speech

claims unrelated to patronage allegations. Neither case

involved a patronage dismissal of a high ranking employee

in the wake of an election based upon political affiliation or

support.

Mills’ request that this Court review this case to

determine if a Connick-Pickering analysis applies is

baseless. Mills’ complaint alleges a patronage dismissal.

Mills has not identified any speech of the type present in

Connick or Pickering in support of his claim.

Mills reliance on O'Hare Truck Services v. City of

Northlake, 518 U.S. 712 (1996) for his argument that a

Connick-Pickering analysis should be used in the instant

case is misplaced. O’Hare dealt with extending patronage

protections afforded public employees to independent

contractors who refuse to support a candidate and instead

11

support that candidate’s political opposition. /d. at 715. This

Court did not require that a Connick-Pickering analysis be

applied in O'Hare. Significantly, O'Hare was construed as

“simply an affiliation case” requiring an Elrod-Branti

analysis.* O'Hare, 518 U.S. at 714-715, 720.

Mills, in the instant case, alleges he lost his job because

of his political affiliation and support of Meadows’ political

opponent. Such a claim falls squarely under the Elrod-

Branti political patronage analysis and not the Connick

Pickering free speech analysis. There is no need to apply

Connick-Pickering in this case.

CONCLUSION

For the reasons set forth herein, the Petition for

Certiorari should be denied.

Respectfully submitted,

PHILIP S. ROBERTS

Counsel of Record

Harford County Department of Law

220 S. Main Street

Bel Air, Maryland 21014

Attorney for Respondents Joseph P.

Meadows and Harford County, Md.

* Although construed as a political affiliation case at the motion to dismiss

stage, this Court left the lower courts on remand to decide whether the case

would be governed by Elrod-Branti or Pickering at the summary judgment

stage. O'Hare, 518 U.S. at 726. This tacit acknowledgement that the

summary judgment record may support Connick-Pickering claims in

O'Hare does not advance Mills’ argument. No speech of the Connick-

Pickering variety is evident in the summary judgment record in the instant

case.

12