Elise Hilton v. Catherine Mish
16-2741
| 6th Cir. | Jan 5, 2018Background
- In 2015 the Grand Rapids City Attorney Catherine Mish, using her City email, sent two private emails to Donald Zerial (an attorney/activist) criticizing Elise Hilton and her employer Acton Institute in the context of an ongoing Acton tax-exemption dispute and earlier litigation the Hiltons had brought against the GRPD concerning their developmentally disabled daughter, EH.
- Mish’s emails included highly derogatory statements about EH (a minor rape victim) and the Hiltons; the emails were later produced in response to a FOIA request and forwarded to Elise Hilton about a year after they were sent.
- The Hiltons sued Mish and the City under 42 U.S.C. § 1983 for First Amendment retaliation (Counts 1–2) and brought a state-law intentional infliction of emotional distress (IIED) claim (Count 3).
- The district court dismissed all claims: it held Mish acted as an individual (not under color of state law), granted Mish qualified immunity, dismissed Monell claims against the City, and found the IIED allegations insufficient.
- The Sixth Circuit affirmed. The panel assumed (without deciding) Mish acted under color of state law and that a constitutional violation could be established, but concluded the law was not clearly established for qualified-immunity purposes, rejected municipal liability, and held Mish’s conduct did not meet Michigan’s high IIED threshold.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mish was acting under color of state law when she sent the emails | Mish, as City Attorney and lead counsel on related litigation, acted in her official capacity when communicating about city litigation to a local attorney/activist | Mish acted as a private individual sending a private email from her City account and thus not a state actor | Majority assumed but did not decide state-action; concurrence argued plausibly official conduct — appellate decision rests on other grounds (qualified immunity) |
| Whether Mish’s emails constituted First Amendment retaliation (adverse action) and whether law was clearly established (qualified immunity) | Hiltons: emails were retaliatory, publicly embarrassing, likely to deter exercise of rights; precedent (Fritz, Barrett, Bloch) put Mish on notice | Mish: sending a private email to a private individual (no authority over Hiltons) is not the sort of adverse action that clearly establishes liability | Court: even if constitutional violation assumed, precedent did not clearly establish that Mish’s private email constituted an adverse action; granted qualified immunity to Mish |
| Municipal liability (Monell) — whether City is liable for Mish’s conduct | Hiltons: Mish was a final policymaker for litigation; her actions are attributable to City policy | City: Mish’s authority to litigate does not equate to City policy authorizing defamatory statements; no affirmative link pleaded | Court: complaint did not plead that City policy caused the alleged constitutional violation or that City sanctioned the defamatory comments — Monell claim dismissed |
| IIED under Michigan law | Hiltons: Mish’s statements were outrageous and foreseeable to be disclosed via FOIA, causing severe emotional distress | Mish/City: statements were private, not publicly disseminated at the time, and do not meet Michigan’s extreme-and-outrageous standard | Court: statements (though shameful) were private and discovered by chance a year later; did not meet the high IIED threshold — IIED claim dismissed; concurrence would have allowed IIED to proceed to jury |
Key Cases Cited
- Fritz v. Charter Twp. of Comstock, 592 F.3d 718 (6th Cir. 2010) (public official statements to an employer that encourage termination can be an adverse action)
- Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997) (public statements by a judge to press held not entitled to qualified immunity where they violated First Amendment rights)
- Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998) (public disclosure of intimate, humiliating, or confidential information in retaliation can be an adverse action)
- Monell v. Dept. of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978) (municipal liability under § 1983 requires a policy or custom that is the moving force behind the constitutional violation)
- White v. Pauly, 137 S. Ct. 548 (2017) (clearly established law must be particularized to the facts of the case)
- Filarsky v. Delia, 566 U.S. 377 (2012) (private attorneys performing traditional government functions may be state actors; conduct fairly attributable to the state determines § 1983 liability)