*1 adversary proceedings given that propriate Davis, final D. lawsuits” and Teresa viewed as “stand-alone Kathleen COPE
can be appealed Plaintiffs-Appellees, if the could disposition which bankruptcy. 16 outside of dispute had arisen Wright Miller, Arthur R. Alan & Charles Individually HELTSLEY, Devra S. 3926.2, § supra, at 283. Capacity Hopkins as her Official 54(b) for Rule certi requirement Clerk, Defendant-Appellant. Court finality purposes determining fication for No. 95-6696. 158(d) § under 28 U.S.C. “establishes much-needed, for bright-line test determin Appeals, States Court of United finality certainty for liti ing providing [and] Circuit. Sixth court orders as to whether district gants” Argued Nov. 1996. ap bankruptcy court are remanding to the Petroleum, Decided Oct. In pealable. re Frederick of certifica F.2d at 853-54. In absence Rehearing Rehearing Suggestion 54(b) finality to the of a tion under Rule En Denied Dec. 1997.* Banc in a disposition by the district court partial any partial disposi bankruptcy proceeding, purposes ap is deemed non-final for
tion
peal. Id. 853-54. 54(b) was request Rule certification
No and no certi
made to the District Court such
fication issued. In absence such certifica
tion, remanding order the District Court final. Bankruptcy
case subject lack matter
Id. at 854. We therefore 158(d)2
jurisdiction must under section appeal this at this time.
dismiss
III. Conclusion above, forth DIS-
For the reasons set we appeal subject this for lack of matter
MISS
jurisdiction. 1292(b), appellate interlocutory jurisdiction § orders in bank
2. which confers review of U.S.C. appellate interlocutory ruptcy long to review deci proceedings. party on courts So as a bankruptcy proceed sions of district courts proceeding bankruptcy meets the con or case jurisdiction ings, provide as no does not us with appeals § imposed a court ditions may 1292(b) section made. Con certification jurisdic rely that statute a basis for Germain, necticut National Bank v. tion.”). 1146, 1149-50, 117 112 S.Ct. L.Ed.2d * ("There Judge grant rehearing rea- Cohn to infer either no reason 158(d) Congress § sons his dissent. § to limit stated in meant *2 appropriate qualification
patibility as jobs. reappointment On proposition this the defendant strength summary judgment on a claim of moved immunity. qualified Her motion was denied. review, Upon de novo we conclude as mat- *3 was entitled to ter of law that defendant n immunity. of such im- qualified The denial munity will be reversed.
I Constitution, Kentucky § Under Fulmer, (argued and II William K. county is to each in Commonwealth KY, briefed), Plaintiff-Appel- Covington, for in county clerk —referred elect a lee. County a Clerk1— as Constitution briefed), Choy R. Allen (argued Sun S. and every function as years. These officials four Louisville, KY, Button, Wagoner, Williams & recorders, signifi they and county also Defendant-Appellant. for respect responsibilities cant with voter elections, registration of and conduct DAUGHTREY, NELSON Before: licensing, of registration motor mar vehicle COHN, Judges; Judge.** District Circuit li riages, hunting fishing of issuance taxes, censes, of fees and collection certain NELSON, J., opinion of delivered matters, including increasing and other J., DAUGHTREY, court, joined. in which imposed unfunded of mandates number COHN, (461-462), a separate D.J. delivered capitol in Frankfort. from the state dissenting opinion. Kentucky’s Hopkins Western —de- testimony a deposition “small scribed in OPINION county” population type with a of Southern NELSON, Judge. A. DAVID Circuit 45,000 county a long-time clerk around —had Mr. Brooks first William Brooks. named brought against rights This is a civil action county clerk’s in won election to Kentucky clerk newly-elected a retired for reasons of health at and he passed deputy clerks who were over two fifth term in 1993. the end of his took of- when the defendant reappointment dispute There is a as whether fice. At time of his retirement there were plain- to retain the decision not defendant's staff, clerks Brooks’ full-time on Mr. job perfor- on the latters’ tiffs was based All plus part-time two clerks. were mance, they opposed to the fact that had Democrats, registered except Repub- for one primary gen- in other candidates backed at the appointed request lican defen- won by eral elections the defendant. dant, Heltsley, after the November Devra - (Mr. policy ap- Brooks a dispute factual election. had Regardless how this resolved, only political pointing members of his own might be the defendant took successor, Heltsley, party; Mrs. did not position before court that no his the district automatically Republicans exclude con- legal rule would have established sideration, too manifestly notwithstanding that she person unreasonable for a made it Democrat.) in her to treat com- standing shoes ** law, Cohn, example, provided United Dis- all cor- The Honorable Avern States otherwise porate powers Kentucky are of a exer- Judge Michigan, trict Eastern District 67.080(e). by a court." cised county "fiscal K.R.S. The designation. sitting by may county may given clerk in a nomenclature, court, 1. Under which see K.R.S. serve as clerk fiscal 67.120(1), Regis, justice indirectly courts have their hark back to the medieval Curia but own regardless. necessarily judicial body. is not Unless clerks a court appointed Heltsley, asked -had clerks were Mrs. who been her class- They school, pleasure. high served at his had about getting job clerk and mate statutory protection. civil service no the clerk’s Mrs. office. said she Cf. Robertson, (Ky. thought Moss 712 S.W.2d going there was be an so opening, (deputy “political ap are App.1986) clerks spoke Mrs. Mr. Davis it. Brooks about lacking civil service sta pointees,” “merit or He .a,part-time deputy, hired her as tus,” jobs “obtain and their at the who hold licensing department. vehicle motor pleasure will and of’ the working Davis full started time several clerk). months before the 1993 election. during Mr. Brooks testified that his tenure point thereabouts, At some in 1991 or after employees he told his that he office would Mr. hospital Brooks had been and at expect, them to vote for at election time. him circulating time when rumors were that he According deposition to the defendant’s testi- might reelection, not run for a magistrate *4 mony, the given were understand Wayne Browning named if asked he could be if Mr. Brooks not reelected ... “that was first the to be told should Brooks decide and successor] could come in clean house [his responded run. Mr. in Brooks the affir- day....” Another witness the next testified mative. deputy clerks asked to cam- that all were Early in January of 1993 Mr. Brooks made paign They for Mr. Brooks at time. election up his' mind not to stand for reeleetion. He so, apparently. all did Browning, so advised Mr. and he asked Heltsley Mr. Mrs. was hired Brooks as Browning for a commitment not to discharge deputy clerk in 1983 or She testified anyone in Browning the clerk’s office if place polling that she had been a worker for Browning should be elected clerk. agreed. during prior Mr. Brooks to her two elections Mr. employees Brooks his called into his appointment, and she had been recom- day, office the next them of told his decision position by for mended the the run, suggested they not to support and judge-executive. county Browning. Heltsley Mr. replied Mrs. Cope, a Plaintiff Kathleen friend of Mr. running she was in interested for election .(herself daughter Brooks’ clerk un- herself. sorry Mr. Brooks said .he was he 1993), til was hired as a clerk two or earlier, adding had not known interest of her years Heltsley. It three after Mrs. was Mr. support he that would not be able to her now impression Heltsley Cope, Brooks’ and already pledged he because was together in motor who worked the vehicle Browning. licensing department years, for several had primary was held in of May election problems getting along one another. with Heltsley, with Mr. Browning, Mrs. and however, Cope, Mrs. testified that she liked seeking other three candidates the Demo- Heltsley. Mrs. Cope cratic nomination. Mrs. and Mrs. daughter Plaintiff Teresa Davis was of Davis, actively supported Browning, as did Hopkins magistrate. a former Her in several of their co-workers the clerk’s had fiscal court father served on the supported Heltsley— office. Others Mrs. years, she testified. Davis knew Mr. Mrs. pink clothing signify wearing sometimes father, through her and she Brooks worked n they part Heltsley’s “pink of were in the clerk’s office for short time"in team,” as it to be called—while came the rest the 1970s after her father asked Mr. Brooks people apparently in office re- job. in keep her mind for a Mrs. Davis primary until mained uncommitted was left the clerk’s office to first in the tax work " over. commissioner’s office then in the and sheriff’s department. stay primary, In After won Heltsley 1979 she decided to Mrs. ev- eryone except Cope home to raise her was in children —this about the clerk’s office Mrs. time Mrs. in support the same that her father retired as Davis came out of Helts- ley’s magistrate candidacy shé returned to the work for election November. —but candidate, years Republican few 1990 or hygienist force a later. In 1991 she The dental phone and for Tarter, personal calls by Cope for excessive supported Retha named Cope Mrs. friction within office. causing Davis. called Mrs. —who help in primary to offer Tarter after the December, 1993, Shortly the end of before campaign— yard signs the Tarter placing Mrs. Heltsley Cope and Mrs. notified Mrs. that, Brown- Tarter as a sometime told Mrs. employment would termi Davis that their be- supporter, was concerned about ing she expiration term upon nate of Mr. Brooks’ Heltsley keep job if Mrs. won ing able to her Before they reappointed.. not be general election. testified, Heltsley she taking step, Mrs. this job keeping her Cope’s Mrs. about concern attorney and a only consulted not misplaced, although it is uncertain was not representative Attorney thé General’s of Heltsley Mrs. and to what extent whether fice, Babbage’s man right but Bob harid Cope’s may been Mrs. influenced Secretary of State’s office and support of other candidates. We are clerks at least two other counties. about the knew Court’s decision any of these privy to the substance of Illinois, Party Republican Rutan genuine There is a issue conversations. 62, 110 L.Ed.2d Heltsley’s fact motivation decid as to Mrs. expanding the decision contexts —-a and, plaintiffs,3 given ing not to rehire recognizes the Court constitutional which case, procedural posture of we must to which limitations the extent present purposes that the issue assume for taken into account in considerations if *5 plaintiffs would in favor the be resolved of government personnel actions2 —and state jury. submitted to a Heltsley that her Mrs. has denied decision dispense Cope with of Mrs. and the services II support on their of Mrs. Davis was based “I Browning Mr. or Mrs. Tarter. either The lawsuit plaintiffs commenced their two plaintiffs,” hired these 1994, August filing complaint against of Heltsley deposition, at her “if Mrs. testified Heltsley individually Mrs. and her —both they for me the full-time.” campaigned had Dis- capacity official the States United —in of Ken- trict for the Western District Heltsley’s The stated for Mrs. dis- Court reasons tucky the fol- job performance of Mrs. at Owensboro. As amended satisfaction with the lowing complaint among year, alleged the Cope and Mrs. Davis included an excessive handling the paperwork, things of other case arose under number mistakes that customers, use of office tele- First and Fourteenth Amendments rudeness 42 phones by Cope Mrs. for United Constitution and U.S.C. and fax machines States ventures, 1988; §§ plaintiffs that had high her own. and absen- 1983 and business positions from their as part. employees on Mrs. Both been removed teeism Davis’ publicly expressed clerks of their allegedly provide failed the sort of custom- because Tarter Heltsley Browning wanted for Mr. and Mrs. er service Mrs. to stress— example complaint performance a’written and not because of their she cited one job; Supreme he decision from a customer who claimed had been that under Court’s Rutan, standing actions violated left in line for 30 minutes while defendant’s guaranteed plain- Cope personal rights and free speech Mrs. Mrs. Davis discussed tiffs and Amend- matters. —and two women were faulted the First Fourteenth April date date for a worker's retention or nonre- 2. Under of Secre- as a basis taiy Babbage of Stale Bob sent memorandum it and the cases on which tention. Rutan earlier office, including III, to all local Mrs. candidates for rests in Part are discussed infra. Heltsley, "Essentially,” subject on the of Rutan. wrote, Babbage employ- Court held Mr. “the that testimony We add that there was should —de- political support, in ment or dismissal based on Heltsley indicating that when nied Mrs. — instances, unconstitutional, especially certain Tarter, Heltsley Cope supporting was she heard rights when it Amendment of violates First complained said about it and some- Brooks employee.” Babbage cautioned that "with thing Cope the effect that she did think exceptions,” few elected officials could not use ought to be able to work there. capdi- political activity particular support of a claims, disposition capacity in the their official merits; liberty that interests of and impaired in good panel names had been but a of this court plaintiffs’ declined to allow of of the Due Process plaintiffs’ Clause such cross-appeal violation review. The was plaintiffs Amendment. jurisdiction, only Fourteenth lack of dismissed for damages compensatory punitive sought qualified immunity question is before us attorney fees. award of costs and and an now. discovery, extensive defendant After Ill summary In
Heltsley judgment. moved accompanying her she ar- the brief motion qualified the doctrine of Under immu (1) plaintiffs pro- due gued that the had no nity, explained (2) claims; liberty the First cess Fitzgerald, 800, 818, Harlow v. claims of Amendment were barred because (1982), S.Ct. gov L.Ed.2d 396 reemploy- apply failure to plaintiffs’ engaged performance ernment officials in the (3) ment; Heltsley that Mrs. not be could discretionary are generally functions capacity in her because held liable official liability [and, indeed, “shielded from no consti- alleged there evidence was damages suit] for civil insofar as their con violations tutional were the result violate duct does not established stat (4) plaintiffs County policy; Hopkins utory rights or constitutional of which a rea no produced evidence that their - had person sonable would have known.” Cf. motivating expression was a substantial or 635, 638-39, Creighton, Anderson v. 483 U.S. (5) them; in the decision not to 3034, 3038,
factor
rehire
(1987);
L.Ed.2d 523
politi-
Heltsley
to take
entitled
Pray
City
Sandusky,
49 F.3d
hiring
into
(6th
cal considerations
account when
Cir.1995); Saylor
1157-58
v. Bd. of
clerks,
deputies being
“alter-
Cty. Ky.,
Educ. Harlan
F.3d
herself;
egos”
(6th
the clerk
that Mrs.
Cir.1997).
immunity
qualified
was entitled to
statutory rights
are no
There
at issue
presented
a reasonable
with
because
officer
*6
seen,
in the
bar. As
case at
we have
howev
the facts known to her
not have be-
er,
plaintiffs
Heltsley
assert
the
Mrs.
clearly
violating any
that she was
es-
lieved
constitutional right
violated their
of free
plaintiffs
right
constitutional
of
tablished
speech by
allegedly retaliatory
to
her
refusal
failing
to rehire them.
of
make them members
her staff. This
consideration of
mo-
After
the defendant’s
Hopkins
claim—which the citizens of
tion,
response
by
plaintiffs,
thereto
and
a
would doubtless have considered bizarre had
defendant,
reply
court
district
it been asserted back when Mr. Brooks was
carefully
opinion
crafted
and order
issued
clerk
for the first
time
(1) granting summary judgment
the defen-
1973—rests on decisions rendered
as she
in her
dant insofar
had been sued
Supreme
v.
United
Court in
States
Elrod
(2)
capacity;
granting summary judg-
official
Burns,
347,
2673,
427 U.S.
96
49
S.Ct.
individually
ment
on the
defendant
(1976),
Finkel,
Branti v.
445
L.Ed.2d 547
plaintiffs’
pro-
Fourteenth Amendment due
1287,
507,
574
100 S.Ct.
63 L.Ed.2d
claims;
liberty
summary
denying
cess
(1980),
Republican Party
v.
and Rutan
individually
judgment
the defendant
on Illinois,
62,
2729, 111
497 U.S.
110 S.Ct.
claims;
plaintiffs’
First Amendment
(1990). The
L.Ed.2d 52
Elrod-Branti-Ru
(4) denying qualified immunity.
that “the
trilogy
tan
teaches
First Amend
Notwithstanding
government
a final
dis
absence of
ment forbids
officials to
timely
judgment,
charge
promote,
the defendant
notice
...
transfer or fail
filed
[or
(It
undisputed
appeal.
public employees solely
that the defen
recall or
hire]
interlocutory appeal
being supporters
party
dant was entitled to an
of the
511,
Forsyth,
power,
party
appro
under Mitchell v.
472 U.S.
105
unless
is an
affiliation
(1985).)
2806,
priate
requirement
position
86
411
The
in
S.Ct.
L.Ed.2d
Rutan,
64,
plaintiffs
permission
obtained
the dis
cized
had been
B
Assuming
-Heltsley
that Mrs.
did violate
A.
declining
the Constitution in
to hire the
argument presented by
The first
defen-
plaintiffs,
clerks,
we must address
Heltsley
appeal
dant
is that she comes
question
whether
the constitutional
“appropriate requirement” excep-
within the
rights
wrongs
of the situation were so
tion as a matter of law. Political
established,
1993,
in December of
deputies
clerk
her
is necessari-
Heltsley’s po-
reasonable official in Mrs.
ly
appropriate requirement
necessarily
sition would
have realized that
contends,
position,
Heltsley
Mrs.
be-
plaintiffs
right
had a constitutional
not to
cause the duties of the
are inherent-
rejected
polit-
clerks
because
ly political
and because the
are “al-
incompatibility
ical
with the clerk herself.
egos”
ter
clerk under
analysis
begin
question
We
our
of this
with a
follows,
submits,
law. It
Mrs.
survey
pertinent
legal princi-
brief
of some
plaintiffs
have
to make a
failed
colorable
ples.
rights
claim that
their constitutional
were
at all.
violated
logical
step
deciding
The
first
whether
important
It
understand
there is a colorable claim that a defendant
Heltsley’s
subjective
own
views on the
“clearly
has
violated
established” constitu-
legality
staffing
of her
decisions are essen
right
plaintiff
tional
is to decide “whether the
Anderson,
tially irrelevant.
483 U.S. at
Cf.
has asserted a violation of a constitutional
(“Anderson’s
reasons
in the
would not
at 815-19,
Fitzgerald, 457 U.S.
102 S.Ct. at
violated the Constitution under
cir-
applicable
2736-39. The
standard is now
cumstances.
recognized
“objective legal
as one of
reason
819,
2739;
ableness.”
Id. at
102 S.Ct. at
legal
The
proposition,
correctness of this
Anderson,
639, 107
however,
483 U.S. at
S.Ct. at 3038-
necessarily
is not
self-evident. For
39; Pray, 49
at
F.3d
1158.
panel
to come to a consensus on the issue
difficult,
might prove
and it
seem
sen-
requires
This standard
the courts
pretermit
sible to
question
if that right
to examine
relatively
the asserted
at a
permissible.
high
specificity.
right
level of
The
must have
discovery
here,
completed
Had
not been
“clearly
just
been
in
established”
an ab
probably
sense,
we should
have had no choice but to
in
“particularized”
stract
but
sense.
Anderson,
640,107
decide the threshold issue head-on. See Sie-
483 U.S. at
S.Ct. at 3039.
gert,
232-233,
500 U.S. at
immunity
459 case-by-case fact-specific, reversing “on a basis to de in qualified a denial of immunity to newly-elected termine whether a reasonable official domestic relations court who, judge could have believed acting defendant’s] capac- his administrative ” Pray, ity, that his conduct was lawful.... 49 had declined reappoint a referee whom .Jackson, at v F.3d Garvie 845 the successful candidate had observed Cf. (6th 647, Cir.1988); 650 F.2d Guercio v. Bro act of distributing campaign literature for an (6th 1179, Cir.1990), dy, 911 F.2d 1184 cert. opposing candidate. denied, 904, 1681, 114 What these decisions and others like (1991); Abramson, v. L.Ed.2d Cullinan show, sum, them qualified this: “For (6th Cir.1997). F.3d And the immunity surrendered, to be pre-existing law convincing burden of the court that the law (not dictate, is, truly must compel just particular established under this suggest or about), allow or raise'a question ized “could have believed” is a test burden every like-situated, conclusion for reáson squarely plaintiff. that rests on the Hughes government able agent that what defendant Olmsted, City v. North 93 F.3d is doing violates federal law in the circum (6th Cir.1996). Saylor, stances.” 118 F.3d at quoting Univ., Lassiter v. Alabama A & M Bd. importance specific of the fac Trustees, (11th Cir.1994) 28 F.3d qualified immunity
tual context in which a
(en banc) (emphasis
original).
question
Cagle
arises
be seen in
v. Gil
(6th Cir.1992),
ley,
460 (The political
job
genuine
be
or non-
416.
existence of a
issue of
should
classified
entitled,
political loyalty
ap
fact as to whether
an
political is at least
as the First
is
said,
job
propriate requirement
particular
for a
Circuit has
‘some deference.’”
Rice,
1142-43,
obviously
preclude
14
at
Jime-
does not
a belief on the
quoting
F.3d
Gaztambide,
part
appointing
of a
official that
v. Torres
807
reasonable
nez-Fuentes
req
(1st Cir.1985).
political loyalty
appropriate
F.2d
is
fact an
uirement.)
place,
Kentucky
In the
second
Revised
possible,
it have been
at the
provisions
Would
Statutes contain
which a reason-
person, newly-
county
easily interpret
end
reasonable
able
clerk could
clerk,
Kentucky county
to believe meaning
deputy county
that a
clerk is the
elected^
political
that
the law entitled her to take
ego
county
alter
of the
clerk herself. See
(“[t]he
compatibility
deciding
into account in
whom
county
K.R.S. 62.210
office of the
answer,
to retain as her
clerks? The
...
clerk
shall be liable for the acts or omis-
think,
“yes.”
clerks”)
382.990(5)
we
is
sions of
and K.R.S.
who,
(“[a]ny county
depu-
clerk
himself or
place,
published
In the first
there was no
ty,
perform
duty enjoined
any
upon
fails to
Ap-
decision
the United States Court of
”).
him ... shall be fined ...
See also K.R.S.
certainly
peals for
Circuit —and
no
the Sixth
applicable
county
61.035—held
clerks and
decision
United States
Cranfill,
their
v.
Hallaban
holding
political compatibility
Court —
(Ky.1964)
provides
S.W.2d
—which
not,
Rutan,
appropriate
in the words of
“an
any duty “enjoined by
law or
the Rules of
requirement
position
involved.” 497
officer,
upon
Civil Procedure
a ministerial
at
at
S:Ct.
2732.
“[I]n
”
him,
permitted
act
to be done
case,
present
pre-ex-
circumstances
performed by
deputy.”
his lawful
An
isting
“truly compel”
law
not
did
the conclu-
county
engaged
clerk
in the selection
selecting
public
sion that
her staff —the
egos
reasonably
of his or her own alter
could
face of the
clerk’s office—the clerk
political compatibility
appro-
to be an
believe
political compatibility
could
take
into ac-
priate test.
Saylor,
count.
at 515.
F.3d
(6th
Belcher,
place,
Christian
ignored the traditionally supported
tics a “to the victor
belong spoils”2 of conduct for standard
newly give officials is no reason to immunity a claim of First
defendant in the circumstances of
Amendment violation
this case. ALLEN, Plaintiff-Appellee,
Ella M.
TRANSAMERICA INSURANCE
COMPANY, Defendant-
Appellant.
No. 96-1865. Appeals,
United States Court
Seventh Circuit.
Argued Nov. *
Decided June 1997. * opinion republished 2. Such is how New York Governor William Editor’s Note: This with Marcy Learned described President Andrew the correct attachment. patronage. use of Jackson's See Martin Tolchin Tolchin, (1971). & Susan To the Victor ... 323