Monks v. MarlingaMonks v. Marlinga
Appellants Frederick Balkwill, Margo Balkwill, and the Estate of Leo Russ appeal four rulings of the district court: (1) the Rule 12(b)(6) dismissal of the appellants’ claim that Carl Marlinga discharged the Balkwills and Russ “in substantial part” because they were “active in union аctivities,” (2) the grant of summary judgment against appellants on their claim that Marlinga discharged them “in substantial part” because of their political affiliations, (3) the determination that Marlinga is entitled to qualified immunity resрecting the political affiliation claims, and (4) the dismissal of the Balkwills’ slander claim as untimely. 732 F.Supp. 749. For the reasons that follow, we AFFIRM the district court.
The Balkwills and Russ served as assistant prosecutors under Macomb County‘s formеr prosecutor, George Parris. Marlinga defeated Parris in a hotly contested Democratic primary race in 1984. After winning the general election, Marlinga was sworn in as the new Macomb County prosecutor. Under Michigan law, the employment as assistant prosecutors automatically terminated upon Marlinga‘s assuming office.
The Balkwills and Russ filed a complaint alleging age discrimination on September 30, 1986, in Wayne County Circuit Court. The action was transferred to Macomb County Circuit Court on January 1, 1987. Frederick Balkwill subsequently was elected Macomb County Circuit Court Judge, however, and thus the entire Macomb County Circuit Court recused itself. The action was transferred back to Wayne County and the complaint was amendеd adding a claim of tortious interference with the Balkwills’ and Russ’ employment contract, slander against the Balkwills, and two claims by the Balkwills and Russ under section 1983. The two claims under section 1983 include their union activities claim and their political affiliation claim.
The cause was removed to federal district court on May 26, 1989, and appellees moved respectively for dismissal and summary judgment under
The appellants appeal the district judge‘s ruling that the union activities claim must be dismissed under
In dismissing the appellants’ allegations of discharge for union activities claim, however, the district judge based his holding on the proposition that appellants failed to aver in their complaint that their union activities touched on a matter of public concern. Because the appellants failed to allege that the union activities touched on a matter of public cоncern, the district judge reasoned that under Connick, supra, they failed to state a claim for which relief can be granted. We disagree.
We find the appellants’ union activities claim sufficient to state a сlaim under the minimal requirements of notice pleading,
The appellants also appeal the district court‘s grant of summary judgment on their political affiliation claim. They argue that political affiliation is not pertinent to the effective performance of a Michigan assistant county prosecutor. The аppellants contend that the job of assistant prosecutor is a limited, technical and neutral position.
The Supreme Court has established that politically motivated discharge of government employees violates the first amendment unless the job is a policy-making position. Rutan v. Republican Party of Illinois, --- U.S. ----, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Branti v. Finkel, 445 U.S. 507, 517, 100 S.Ct. 1287, 1294, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 366, 96 S.Ct. 2673, 2686, 49 L.Ed.2d 547 (1976). In addressing whether a job is a policy-making position, this court held that the “relevant focus of аnalysis is the inherent duties of the position in question, not the work actually performed by the person who happens to occupy the office.” Williams v. River Rouge, 909 F.2d 151, 154 (6th Cir.1990) (citing Meeks v. Grimes, 779 F.2d 417, 419 n. 1 (7th Cir.1985)). Thus, we believe it appropriate to consider only thе required duties of a Michigan county assistant prosecutor, not the job as it was performed by the Balkwills and Russ.
The district judge correctly recognized that under a Michigan statute, an assistant prosecutor must “perfоrm any and all duties pertaining to the office of prosecuting attorney....”
The Balkwills also challenge the district court‘s dismissal of their state law slander claim. In Carnegie-Mellon v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988), the Supreme Court ruled that a federal court need nоt dismiss state claims when all federal claims have been eliminated. Although the federal court may decline to exercise jurisdiction, the rule is not mandatory but, instead, may be applied flexibly in all cases. Id. at 350, 108 S.Ct. at 618-19. The federal court must balance concerns of judicial economy, convenience, fairness and comity. Id.
The state issue before the federal district court involved a simple application of a basic state rule, specifically the statute of limitations on slander claims. Allowing remand of this claim to state court would have only delayed the inevitable. Michigan‘s statute of limitations for slander is one year.
The judgment of the district court is therefore AFFIRMED.
DAVID A. NELSON, Circuit Judge, concurring.
Although I concur in the court‘s disposition of the appeal and in the opinion, I write separately to offer some additional comments on the significance of the plaintiff-appellants’ failure to submit any affidavits in response to the defendant-appellees’ motion for dismissal and summary judgment.
In their response to thе motion, the defendant-appellees stated that although a magistrate had entered an order allowing discovery to continue until March 1, 1990, “Defendants are unwilling to participate in discovery until Defendants’ current Motion is decided.” If, pursuant to
The fact that Mr. Marlinga may have been “unwilling” to participate in discovery means nothing. Under
The record does not indicate that the plaintiff-appellants ever gave notice of Mr. Marlinga‘s deposition, and they clearly failed to make the kind of showing required by