# Opposition Brief — Mills v. Meadows

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0275%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1105

## Text

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
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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
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CONCLUSION ...2:sssseissinensunsenasaiiiiensecniniiene paaeanianal 12

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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

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Statutes
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Foust Circuit Local Bathe B66) .cccscsssecassssichadciatssreccestearsarves 8
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0275%3A3. Public record. Not legal advice.