FAMILY TRUST FOUNDATION OF KENTUCKY, INC., et al., Plaintiffs-Appellees, v. KENTUCKY JUDICIAL CONDUCT COMMISSION, et al., Defendants-Appellants.
No. 04-6250, 04-6251.
United States Court of Appeals, Sixth Circuit.
Oct. 27, 2004.
Finally, Mayor Durham is entitled to absolute immunity with regard to her vote on the ordinance providing that a party who files a frivolous lawsuit ethics complaint must pay attorneys’ fees to the accused official. Absolute legislative immunity attaches to all actions taken in the sphere of legitimate legislative activity. Bogan v. Scott-Harris, 523 U.S. 44, 54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998) (quoting Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951)). Absolute immunity extends to local mayors who are acting in official legislative capacity, and passing an ordinance is an example of an action taken in official legislative capacity. Shoultes v. Laidlaw, 886 F.2d 114, 117 (6th Cir.1989).
B. CITY‘S APPEAL
As discussed, Tucker has also filed a section 1983 claim against the City, alleging that the City maintained an unconstitutional policy of retaliating against individuals who criticized City officials. The City purports to appeal the district court‘s denial of its motion to dismiss this claim or, in the alternative, for summary judgment. It is undisputed that the City‘s appeal is not appealable as a collateral order, but the City urges us to exercise pendent jurisdiction over its appeal. The exercise of pendent jurisdiction, while discretionary, is appropriate where the appealable and non-appealable issues are inextricably intertwined. Brennan v. Twp. of Northville, 78 F.3d 1152, 1157-58 (6th Cir.1996). The City‘s appeal is inextricably intertwined with the individual defendants’ interlocutory appeal because there can be no municipal liability under section 1983 for maintaining a policy of unconstitutionally retaliating against individuals who exercise their First Amendment rights when no such unconstitutional retaliation has actually occurred. See Ewolski v. City of Brunswick, 287 F.3d 492, 516 (6th Cir.2002) (citations omitted) (Where, as here, a municipality‘s liability is alleged on the basis of the unconstitutional actions of its employees, it is necessary to show that the employees inflicted a constitutional harm.). In light of our holding that Tucker has suffered no unconstitutional retaliation, his claim against the City must fail.
III.
For these reasons, the district court‘s judgment is VACATED and the case is REMANDED for the entry of judgment in favor of all defendants.
Leroy A. Gilbert, Jr., Corbin, KY, George F. Rabe, Lexington, KY, Michael W. Hawkins, Dinsmore & Shohl, Cincinnati, OH, for Defendants-Appellants.
Before: MARTIN and BATCHELDER, Circuit Judges; JORDAN, District Judge.*
BATCHELDER, Circuit Judge.
Appellants, which include members of the Kentucky Judicial Conduct Commission (KJCC), the Kentucky Inquiry Commission, and various counsel for the Kentucky Bar Association sued in their official capacities,1 filed an Emergency Motion to Stay the district court‘s October 19, 2004, order enjoining enforcement of
I.
At issue in this case is the district court‘s injunction prohibiting enforcement of
A judge or a candidate for election to judicial office . . . shall not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; shall not make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; and shall not misrepresent any candidate‘s identity, qualifications, present position, or other facts.
(1) whether the defendant has a strong or substantial likelihood of success on the merits; (2) whether the defendant will suffer irreparable harm if the district court proceedings are not stayed; (3) whether staying the district court proceedings will substantially injure other interested parties; and (4) where the public interest lies.
Baker v. Adams County/Ohio Valley Sch. Bd., 310 F.3d 927, 928 (6th Cir.2002) (citing Grutter v. Bollinger, 247 F.3d 631, 632 (6th Cir.2001) (order); Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991)). In applying this test, we balance the factors. The Appellant must demonstrate a likelihood of success on the merits to a degree inversely proportional to the amount of irreparable harm that will be suffered if a stay does not issue. [I]n order to justify a stay of the district court‘s ruling, the [Appellant] must demonstrate at least serious questions going to the merits and irreparable harm that decidedly outweighs the harm that will be inflicted on others if a stay is granted. Id. (citing In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985)). We conclude that the Appellants have failed to meet their burden on any of the four elements.
First, the Appellants have not demonstrated a substantial likelihood of success on the merits. The district court noted that the promises and commit clause in Canon 5B(1)(c) has been used by the State to reach content covered by the announce clause struck down in Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002)—that is, the State has used Canon 5B(1)(c) to prohibit a candidate from expressing views on any specific nonfanciful legal question within the province of the court for which he is running . . . . Id. at 773, 122 S.Ct. 2528; see, e.g., Deters v. Judicial Retirement and Removal Comm‘n, 873 S.W.2d 200 (Ky.1994) (upholding public censure against judicial candidate for running an advertisement stating that he was a Pro-Life candidate in violation of Canon 5B(1)(c)). Although the Supreme Court‘s decision in White applied only to an announce clause and did not involve a promises and commit clause, the district court found that the difference in this case is simply one of a label: the State has enforced the promises and commit clause as a de facto announce clause, and therefore the State is unlikely to succeed in light of the binding precedent in White.
While the Appellants argue that Deters was decided before White and therefore should not be relied upon as a statement of Kentucky law, their statements to judicial candidates suggest a very different enforcement posture. For example, the Au-
Likewise, the Appellants have failed to demonstrate irreparable harm. Indeed, Appellants’ counsel failed accurately to address the question in their briefs, focusing on whether Plaintiffs-Appellees would be irreparably harmed in the absence of the injunction, instead of answering the question before this court: whether Appellants would be irreparably harmed if this court fails to stay the injunction. Furthermore, Appellants have failed to substantiate their claim that staying the district court proceedings will not substantially injure other interested parties.
Finally, Appellants argue that the public interest is not advanced by the injunction, which they claim completely eviscerates Kentucky‘s established mechanisms for maintaining the impartiality and independence of the Courts, both in fact and appearance. However, the district court found that other, narrowly tailored mechanisms existed under Kentucky law to preserve the impartiality of the judiciary—namely Kentucky‘s judicial recusal statute. See
We believe a well informed electorate is essential to the democratic election process guaranteed by the Kentucky Constitution. The right[] of the voting public to hear what a candidate has to say is a compelling one. We further believe candidates for judicial office can announce their views on legal and political issues without jeopardizing the integrity and independence of the legal system or undermining the impartiality of the judiciary.
J.C.J.D. v. R.J.C.R., 803 S.W.2d 953, 956 (Ky.1991) (emphasis added)(striking down Kentucky‘s previous announce clause). Appellants have therefore failed to demonstrate that the public interest lies with staying the injunction.
For the foregoing reasons, Appellants’ Motion for Emergency Stay is hereby DENIED.
BOYCE F. MARTIN, JR., Circuit Judge, dissenting.
In my view, the preliminary injunction issued by the district court should be stayed until the case is fully briefed and argued on expedited appeal before a panel of this Court. The defendants’ challenge to the district court‘s injunction is more than sufficient to support a stay pending such appeal. Given the nature and timing of the injunction, allowing it to remain in effect would be significantly more injurious than issuing a stay. Therefore, I respectfully dissent.