924 F. Supp. 2d 837
N.D. Ohio2013Background
- Marsilio was Portage County Assistant Prosecutor who was terminated on Sept. 18, 2009 after being instructed to stop distributing a campaign advertisement and to apologize to her opponent.
- The ad circulated in Sept. 2009 among her campaign committee and party central committee; it stated opinions about a local political race and alleged “corruption” by opponents.
- Plaintiff responded that the speech was protected political speech but refused to apologize; defendant demanded cessation and apology or termination.
- Plaintiff sued under 42 U.S.C. § 1983 for First Amendment retaliation; Counts II–III alleged equal protection and sex discrimination but were not at issue in the motion.
- The magistrate judge recommended granting partial judgment on the pleadings; the district judge adopted the R&R with limits, denying conversion to summary judgment and excluding some extra-pleading material.
- The court held that Marsilio’s position was confidential/policymaking, and that Rose/Elrod-Branti logic permitted termination based on loyalty, thus qualifying defendant for summary judgment on Count I and, in the alternative, qualified immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Marsilio's speech is protected First Amendment activity | Marsilio argues the ad and related conduct are protected public-speech. | Speech concerns political matters; governmental interest overrides due to confidential/policymaking role. | Speech involves public concern but is outweighed by Elrod/Branti framework. |
| Whether Marsilio held a confidential/policymaking position | No automatic categorization; position may not be policymaking. | Ohio law and duties assign assistant prosecutors as policy-making/confidential. | Marsilio is a category two confidential/policymaking employee under McCloud/Simasko framework. |
| Whether Elrod/Branti exception applies to justify termination | Elrod/Branti should not apply; loyalty not a determinant here. | Confidential/policymaking status plus political/policy speech triggers Elrod/Branti and overrides Pickering. | Elrod/Branti applies; Pickering balance weighs in defendant's favor. |
| Whether qualified immunity shields the defendant from § 1983 liability | Defendant violated clearly established rights. | Right was not clearly established for such officers; qualified immunity protects. | Qualified immunity applies; defendant not liable in individual capacity. |
Key Cases Cited
- Connick v. Myers, 461 U.S. 138 (U.S. 1983) (public concern test governs whether speech is protected)
- Pickering v. Board of Education, 391 U.S. 563 (U.S. 1968) (balance between employee speech and government efficiency)
- Elrod v. Burns, 427 U.S. 347 (U.S. 1976) (patronage dismissals limited to policymaking positions)
- Branti v. Finkel, 445 U.S. 507 (U.S. 1980) (Elrod exception applies to some positions; not public defenders)
- Rose v. Stephens, 291 F.3d 917 (6th Cir. 2002) (Elrod/Branti exception applies to confidential/policymaking employees)
- Simasko v. County of St. Clair, 417 F.3d 559 (6th Cir. 2005) (speech-related termination can fall under Elrod/Branti)
- Monks v. Marlinga, 923 F.2d 423 (6th Cir. 1991) (assistant prosecutors can fall within Elrod/Branti category)
- McCloud v. Testa, 97 F.3d 1536 (6th Cir. 1996) (defines four Elrod/Branti categories for policymaking/confidential roles)
- Latham v. Office of the Atty Gen. of Ohio, 395 F.3d 261 (6th Cir. 2005) (Rose-like application to loyalty concerns in Ohio/prosecutor context)