Opinion
No. C-1-02-092
July 23, 2002
Robert Brand Newman, Lisa Talmadge Meeks, Newman Meeks Co LPA, Cincinnati, OH, for Plaintiff.
Linda L. Woeber, Kimberly Vanover Riley, Montgomery Rennie Jonson, Cincinnati, OH., for Defendant.
ORDER
This matter is before the Court upon defendant's motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) (doc. 6), plaintiff's opposing memorandum (doc. 9), and defendant's reply (doc. 12).
I. Procedural background
Plaintiff Goldie Aliff brings this action under 42 U.S.C. § 1983 against Honorable George M. Parker, Judge, Mason, Ohio Municipal Court. She seeks redress for the alleged violation of her rights under the First and Fourteenth Amendments to the United States Constitution arising from the termination of her employment as Clerk of the Mason Municipal Court. Plaintiff makes the following allegations in the complaint.
Plaintiff is a citizen of the State of Ohio. Defendant is the elected Judge of the Mason Municipal Court. Plaintiff was initially appointed Deputy Clerk of Courts of Mason Municipal Court in October, 1974. She was appointed Clerk of Courts on November 1, 1998, by the Honorable David K. Batsche.
Defendant was elected Judge of the Mason Municipal Court in November, 2001. He took the bench in January, 2002. Plaintiff had supported the election of defendant's opponent and a yard sign of the opponent had been displayed on her property.
Defendant has the administrative authority to appoint the Clerk of Courts pursuant to O.R.C. § 1901.31(A)(2)(a). Upon his election, defendant requested that plaintiff complete a job application and report to him on January 2, 2002. Plaintiff filled out a job application and reported to defendant as requested. Upon meeting with plaintiff, defendant did not consider the job application but instead informed plaintiff that he would not "be able to use [her] on [his] team." Plaintiff stated that rather than be fired, and fearing the loss of her retirement, she would resign. After plaintiff's departure, defendant appointed one of his campaign workers as Clerk of Courts.
Plaintiff was forced to resign her position for reasons that had nothing to do with her competence, experience, and work history. Rather, plaintiff was forced to resign because of her political preference and affiliation with defendant's opponent and because of defendant's requirement that the Clerk of Courts be his political supporter.
Based on these factual allegations, plaintiff claims that she was forced to resign in violation of her rights under the First and Fourteenth Amendments to the United States Constitution. As relief, plaintiff seeks reinstatement to her position, compensatory damages, and reasonable attorneys fees and costs.
II. Motion to dismiss
Defendant moves to dismiss the complaint on the ground that the Clerk of the Mason Municipal Court is a confidential position requiring political loyalty and therefore capable of being filled or vacated based on political patronage without violating the First Amendment. Defendant also contends that he has qualified immunity from liability as a matter of law because a reasonable judge in defendant's position could believe that the Municipal Clerk of Court position was confidential. Defendant further alleges that plaintiff's claim fails as a matter of law because she was not terminated and she cannot state a claim for constructive discharge.
Plaintiff opposes the motion to dismiss on the grounds that the Clerk of Court does not enjoy the discretion, confidentiality, or independent judgment necessary to take the job outside the protections of the First Amendment; a reasonable official in defendant's position would be aware that terminating plaintiff violated her clearly established constitutional rights; and the facts as alleged in the complaint support plaintiff's contention that she was terminated.
III. Applicable law A. Standard of review
In order to prevail on a Rule 12(b)(6) motion to dismiss, the movant must demonstrate that the plaintiff can prove no set of facts in support of her claims which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In ruling on a Rule 12(b)(6) motion to dismiss, the Court must accept the allegations of the complaint as true and resolve all doubts in the plaintiff's favor. Craighead v. E.F. Hutton Co., 899 F.2d 485, 489 (6th Cir. 1990); LRL Properties v. Portage Metro Housing Authority, 55 F.3d 1097, 1104 (6th Cir. 1995) (quoting Swanson v. Bixier, 750 F.2d 810, 813 (10th Cir. 1984) ("[a]ll well-pleaded facts, as distinguished from conclusory allegations, must be taken as true."). The Court need not accept as true legal conclusions or unwarranted factual inferences. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). If matters outside of the pleadings are submitted in support of a motion to dismiss and are not excluded by the court, the motion shall be treated as one for summary judgment. Fed.R.Civ.P. 12(b).
B. The First Amendment
Generally, public employees may not be terminated on the basis of their political beliefs or for exercising their right of free speech. Branti v. Finkel, 445 U.S. 507 (1980). Public employees who hold certain types of positions may, however, be terminated based solely on their political affiliation without violating the First Amendment. Id.; Elrod v. Burns, 427 U.S. 347, 367 (1976). Whether political affiliation may appropriately be considered with respect to the position in question is an issue of law. Sowards v. Loudon County, Tennessee, 203 F.3d 426, 435 (6th Cir. 2000). The question to be resolved is "whether the hiring authority can determine that party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti, 445 U.S. at 518.
The plaintiff bears the initial burden of proving that she was discharged because of her political affiliation. Heggen v. Lee, 284 F.3d 675, 681 (6th Cir. 2002) (citing Hall v. Tollett, 128 F.3d 418, 423 (6th Cir. 1997)). The defendant must then show that the position falls within the Branti/Elrod exception. Id.
Whether a patronage dismissal is permissible is a determination which must be made on a case-by-case basis upon consideration of the record before the Court. Id. at 686 (citing Tollett, 128 F.3d at 423). The Court must look beyond the mere job title and examine the actual duties and responsibilities of the specific position in issue. Sowards, 203 F.3d at 435 (citing Tollett, 128 F.3d at 423). The Court must examine "the inherent duties of the position in question, not the work actually performed by the person who happens to occupy the office." Id. (citing Williams v. City of River Rouge, 909 F.2d 151, 154 (6th Cir 1990)); Heggen, 284 F.3d at 681; Feeney v. Shipley, 164 F.3d 311, 319 (6th Cir. 1999) (the Court must examine the inherent duties of the position as well as the duties that the new holder of the position will perform rather than the position as performed by the plaintiff).
The small size of an office alone does not make "partisan affiliation a relevant factor" for employment in the office. Heggen, 284 F.3d at 685 (quoting Burns v. County of Cambria, PA, 971 F.2d 1015, 1022 (3d Cir. 1992) (rejecting the defendant's argument that the small size of the office, which consisted often deputies, supported the conclusion that political considerations mattered). Moreover, the degree of policymaking which a particular job entails is relevant, but it is not determinative of whether a position falls within the Branti/Elrod exception. Id. (citing Rice v. Ohio Dep't of Transportation, 14 F.3d 1133, 1140 (6th Cir. 1994)). A confidential, non-policymaking position may fall within the exception when the employee in that position works in a close relationship with the elected official and friction and animosities arising from political opposition may occur which create untenable job situations resulting in inefficient operation of the system. See Mumford v. Zieba, 4 F.3d 429, 434 (6th Cir. 1993).
The Sixth Circuit has identified four categories which identify, with reasonable certainty, positions falling into the Branti exception. McCloud v. Testa, 97 F.3d 1536, 1557 (6th Cir. 1996). These are:
Category One: positions specifically named in relevant federal, state, county or municipal law to which discretionary authority with respect to the enforcement of that law or the carrying out of some other policy of political concern is granted.
Category Two: positions to which a significant portion of the total discretionary authority available to category one position-holders has been delegated; or positions not named in law, possessing by virtue of the jurisdiction's pattern or practice the same quantum or type of discretionary authority commonly held by category one positions in other jurisdictions.
Category Three: confidential advisors who spend a significant portion of their time on the job advising category one or category two position-holders on how to exercise their statutory or delegated policymaking authority, or other confidential employees who control the lines of communications to category one positions, category two positions or confidential advisors.
Category Four: positions that are part of a group of positions filled by balancing out political party representation, or that are filled by balancing out selections made by different governmental agents or bodies.
Category One includes a chief executive's cabinet secretaries and similar employees. Id. at n. 30. The requirement that a Category One employee's policymaking authority must be held in relation to a matter of political concern is gleaned from the discussion in Branti that every policy-making employee is not necessarily the sort of policymaker for whom political affiliation is an appropriate requirement under the First Amendment. Id. Category Two encompasses those who would otherwise be Category One policymakers, except that the government has chosen not to set out the responsibilities of such a position in a statute, ordinance, or regulation. Id. at 1557 n. 31. Category Three includes those employees who control the lines of communication to Category One or Category Two position-holders. Id. at 1557, n. 32 (citing Faughender v. City of North Olmstead, 927 F.2d 909, 914 (6th Cir. 1991) ("As political action cannot occur without communication, a position that controls the lines of communication of a political actor must be inherently political."))
If a particular position falls into one of these four categories, then political affiliation is an appropriate consideration for that position and a public employee may be dismissed on that basis without violating the First Amendment. Sowards, 203 F.3d at 436 (citing Hall, 128 F.3d at 424). A government position need not, however, fit neatly within one of the four categories in order to come within the Branti/Elrod exception. Id. (citing Feeney, 164 F.3d at 318). When the position at issue is unclassified or non-merit under state law, a principle known as the Rice canon dictates that any ambiguity as to whether a position falls within one of the four McCloud categories is to be construed in favor of the government. McCloud, 97 F.3d at 1557 (citing Rice v. Ohio Dep't of Transportation, 14 F.3d 1133, 1143 (6th Cir. 1994)).
Defendant acknowledges that neither the Supreme Court, the Sixth Circuit, the district courts, nor any other court has ruled on whether a Clerk of Court is capable of being lawfully terminated based solely on her political activity. Nor has plaintiff cited any cases addressing the position of Clerk in this context. The Sixth Circuit has, however, determined that a number of other positions fall within the Branti/Elrod exception. Some particularly instructive cases and the positions found to fall within the exception are as follows:
Faughender v. City of North Olmstead, Ohio, 927 F.2d 909 (6th Cir. 1991): Secretary to Mayor. The Court determined that functionally, this is a type of position that involves access to confidential and political material and that political loyalty is an essential attribute of the job. Therefore, the new mayor's politically motivated refusal to rehire the former mayor's secretary did not violate the secretary's First Amendment rights.
Feeney v. Shipley, 164 F.3d 311 (6th Cir. 1999): Traffic Safety Supervisor with Ohio Department of Public Safety. The Court noted that the mission of the Traffic Safety Department, a statutorily-defined department of the State's executive branch, is to prevent motor vehicle accidents, reduce the number of fatalities and injuries resulting therefrom, and to administer and enforce the laws of the State of Ohio relating to the registration and operation of motor vehicles and the licensing of drivers. The Court determined that such functions are vital to the State of Ohio and are inherently political in nature.
Balogh v. Charron, 855 F.2d 356 (6th Cir. 1988): Court officer exclusively assigned to elected state trial judge. The Court relied on its findings that the officer was a confidential employee of the judge by whom he was employed who handled sensitive communications for the judge, acted as his bodyguard, and could possibly learn about and discuss case dispositions prior to their being announced to the public.
Williams v. City of River Rouge, 909 F.2d 151 (6th Cir. 1990): City Attorney. The Court found significant the fact that the City Attorney could be employed by the Mayor and City Council in a way that required confidentiality, including giving legal advice, acting as the City's solicitor, handling its litigation, representing City officials in litigation, and performing some of the City's prosecutions. The Court determined that the duties inherent in the position of City Attorney indicated that a relationship of confidence and trust between the City attorney and the Mayor and Council was necessary to the effective performance of the job.
Blair v. Meade, 76 F.3d 97 (6th Cir. 1996): Purchasing Agent and Chief Financial Officer. The Court noted that this plaintiff apparently played a supervisory role in the administration of the County Judge Executive's budget as the plaintiff was responsible for paying bills, preparing claim sheets, and issuing purchase orders, and he therefore would have access to confidential and political information critical to the Judge Executive's budget decisions. The Court determined that the inherent nature of the job made this plaintiff particularly well-suited to aid in policy making. The Court further determined that the Assistant Chief Financial Officer and bookkeeper to the County Judge Executive fell within the Branti/Elrod exception because although many of the assistant's duties were ministerial, the assistant was essentially the alter ego of the CFO and the assistant position involved some of the same elements of trust and confidentiality associated with a CFO.
Conversely, the Sixth Circuit and the United States Supreme Court have determined that various other positions do not fall within the Branti/Elrod exception. The cases in which the Courts have so found include the following:
Heggen v. Lee, 284 F.3d 675 (6th Cir. 2002): Deputy County Sheriff. The Court noted that the Deputy's primary duties included patrolling county roads, serving arrest warrants and civil papers, taking complaints, "working" auto accidents, and transporting prisoners. The Court determined that this position did not fall within the Branti/Elrod exception despite the small size of the Sheriff's office and the fact that plaintiffs enjoyed some discretion in the performance of their duties. The Court noted that defendant had admitted that the plaintiff Deputy Sheriffs could have performed their jobs suitably for him although they had supported his opponent in the election.
Sowards v. Loudon County, Tenn., 203 F.3d 426 (6th Cir. 2000): Jailer. The Court noted that the jailer was charged with the responsibility to receive and safely keep convicts during their transport, to file and keep safe under the sheriff's direction the process by which a prisoner is committed or discharged from jail, to determine within her discretion what type of precautions to take for guarding against escape and preventing the importation of drugs, to provide support, to furnish adequate food and bedding, to enforce cleanliness in the jail, to convey letters from prisoners to their counsel and others, and to admit persons having business with the prisoner. The Court relied on the fact that the jailer position did not involve any policy making for the day-today operation of the prison facility, the jailer was not in a confidential relationship with the Sheriff regarding how to run the facility, the Sheriff did not believe that political loyalty was required for the jailer to carry out her responsibilities, the jailer was simply required to follow directives, and the jailer did not have access to any confidential or political information.
Branti v. Finkel, 445 U.S. 507 (1980): Assistant Public Defender. The Court determined that the Assistant Public Defender did not fall within the Branti/Elrod exception in light of the fact that whatever policymaking occurs in the Public Defender's Office necessarily relates to the needs of individual clients and not to any partisan political interests. The Court also relied on its finding that any confidential information arising out of the various attorney-client relationships to which the assistant was bound to obtain access had no bearing on partisan political concerns.
C. Applicable Ohio statutes
O.R.C. § 1901.31 sets forth the powers and duties of a clerk of an Ohio municipal court.
The statute provides, in pertinent part, as follows:
(E) The clerk of a municipal court may do all of the following: administer oaths, take affidavits, and issue executions upon any judgment rendered in the court, including a judgment for unpaid costs; issue, sign, and attach the seal of the court to all writs, process, subpoenas, and papers issuing out of the court; and approve all bonds, sureties, recognizances, and undertakings fixed by any judge of the court or by law. The clerk may refuse to accept for filing any pleading or paper submitted for filing by a person who has been found to be a vexatious litigator under section 2323.52 of the Revised Code and who has failed to obtain leave to proceed under that section. The clerk shall do all of the following: file and safely keep all journals, records, books and papers belonging or appertaining to the court; record the proceedings of the court; perform all other duties that the judges of the court may prescribe; and keep a book showing all receipts and disbursements, which book shall be open for public inspection at all times. The clerk shall prepare and maintain a general index, a docket, and other records that the court, by rule, requires, all of which shall be the public records of the court. In the docket, the clerk shall enter, at the time of the commencement of an action, the names of the parties in full, the names of the counsel, and the nature of the proceedings. Under proper dates, the clerk shall note the filing of the complaint, issuing of summons or other process, returns, and any subsequent pleadings. The clerk also shall enter all reports, verdicts, orders, judgments, and proceedings of the court, clearly specifying the relief granted or orders made in each action. The court may order an extended record of any of the above to be made and entered, under the proper action heading, upon the docket at the request of any party to the case, the expense of which record may be taxed as costs in the case or may be required to be prepaid by the party demanding the record, upon order of the court.
(F) The clerk of a municipal court shall receive, collect, and issue receipts for all costs, fees, fines, bail, and other moneys payable to the office or to any officer of the court. The clerk shall each month disburse to the proper persons or officers, and take receipts for, all costs, fees, fines, bail, and other moneys that the clerk collects . . . the clerk shall pay all fines received for violation of municipal ordinances into the treasury of the municipal corporation the ordinance of which was violated and shall pay all fines received for violation of township resolutions . . . The Clerk shall keep a separate account of all receipts and disbursements in civil and criminal cases, which shall be a permanent public record of the office. On the expiration of the term of the clerk, the clerk shall deliver the records to the clerk's successor. The clerk shall have other powers and duties as are prescribed by rule or order of the court.
(G) All moneys paid into a municipal court shall be noted on the record of the case in which they are paid and shall be deposited in a state or national bank, or a domestic savings and loan association . . . that is selected by the clerk. Any interest received upon the deposits shall be paid into the city treasury, except that, in a county-operated municipal court, the interest shall be paid into the treasury of the county in which the court is located. On the first Monday in January of each year, the clerk shall make a list of the titles of all cases in the court that were finally determined more than one year past in which there remains unclaimed in the possession of the clerk any funds, or any part of a deposit for security of costs not consumed by the costs in the case. The clerk shall give notice of the moneys to the parties who are entitled to the moneys or to their attorneys of record. All the moneys remaining unclaimed on the first day of April of each year shall be paid by the clerk to the city treasurer . . .
(H) Deputy clerks may be appointed by the clerk and shall receive the compensation . . . that the clerk may prescribe . . . The clerk may require any of the deputy clerks to give bond of not less than three thousand dollars, conditioned for the faithful performance of the deputy clerk's duties.
(J) The clerk or a deputy clerk shall be in attendance at all sessions of the municipal court, although not necessarily in the courtroom, and may administer oaths to witnesses and jurors and receive verdicts.
Another provision of Ohio law, O.R.C. § 2937.23, authorizes the Clerk in a case involving a misdemeanor or violation of a municipal ordinance when the victim of the offense is a peace officer to fix the amount of bail, which the Clerk may do in accordance with a schedule previously fixed by the judge or magistrate.
The Local Rules of the Mason Municipal Court specify additional duties of the Clerk. They authorize the Clerk to permit any person to make a copy of any paperwork filed in any case but require the Judge's approval before original papers may be removed from the office; to issue an "O.R." bond after a defendant has been arrested; and to make a probable cause determination for charges filed by a law enforcement officer. The Rules require the Clerk to inform the Judge of any request for broadcasts or recordings of court proceedings, to give notice of a pre-trial conference to all counsel of record with any requests for a continuance to be addressed to the Judge, and to call jurors drawn from a juror list.
D. Qualified immunity
Government officials performing discretionary functions are generally immune from liability for civil damages so long as their actions do not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "[T]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 637, 640 (1987). That is, "in the light of pre-existing law the unlawfulness must be apparent." Id. "If officials of reasonable competence objectively could disagree on the law, immunity should be recognized." Cameron v. Seitz, 38 F.3d 264, 272 (6th Cir. 1994). The burden is on the plaintiff to allege and prove that the defendant violated a clearly established right. See Tucker v. Callahan, 867 F.2d 909, 913-14 n. 3 (6th Cir. 1989).
In determining whether a constitutional right is clearly established, this Court must look first to decisions of the Supreme Court, then to decisions of the Sixth Circuit, and finally to decisions of other circuits. Cagle v. Gilley, 957 F.2d 1347, 1348 (6th Cir. 1992). Decisions of other courts can clearly establish the law only if the decisions "both point unmistakably to the unconstitutionality of the conduct and be so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct was unconstitutional." Mumford, 4 F.3d at 433.
The plaintiff will defeat a qualified immunity defense if he can produce sufficient evidence after discovery to prove the existence of genuine issues of material fact regarding the immunity defense, or if the undisputed facts show that defendant violated the plaintiff's clearly established rights. Noble v. Schmitt, 87 F.3d 157, 161 (6th Cir. 1996) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). When a qualified immunity challenge is made to a complaint, the Sixth Circuit imposes a heightened pleading requirement. See Veney v. Hogan, 70 F.3d 917 (6th Cir. 1995). In such a case, the plaintiff cannot rely on mere "notice pleading." Rippy v. Hattaway, 270 F.3d 416, 424-25 (6th Cir. 2001). Rather, if the allegations of the complaint do not adequately set forth the circumstances in support of plaintiff's claims, the plaintiff must come forward with either an amended complaint or a supplemental responsive pleading setting forth additional facts or allegations which show a violation of her rights and that these rights were so clearly established when the acts were committed that a reasonable official in the defendant's position, measured objectively, would have clearly understood that he was under an obligation to refrain from the particular conduct. Id. ; Veney, 70 F.3d at 921; Dominique v. Telb, 831 F.2d 673, 676 (6th Cir. 1987). If this pleading burden is not carried by plaintiff in either the original complaint or by a pleading in response to defendant's assertion of the qualified immunity defense, dismissal is proper. Cameron, 38 F.3d at 273 n. 2.
In his concurring opinion in Rippy, Judge Gillman disputed the continued validity of the Sixth Circuit's heightened pleading standard in light of the decision in Crawford-El v. Britton, 523 U.S. 574 (1998), wherein the United States Supreme Court expressed its disagreement with court-fashioned pleading requirements not contained in the Federal Rules of Civil Procedure. It appears, however, that Veney remains the law of this Circuit.
The Sixth Circuit has rejected "the notion that there must be a separate patronage dismissal decision by the Supreme Court or the Sixth Circuit involving a particular position before qualified immunity can be denied in such a case." McCloud, 97 F.3d at 1556.
The lack of specific precedent holding that a particular position is outside the Branti exception is a necessary condition to arguing that the First Amendment right to be free from patronage dismissal is unclear as to a particular position, but the lack of such precedent is not a sufficient condition for concluding that the law is unclear on the subject and so qualified immunity must be granted to a defendant. As the Supreme Court has cautioned when considering its difficult qualified immunity jurisprudence, `This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.' Anderson, 483 U.S. at 640. [Defendant's] argument must fail. It simply cannot be true that there must be a specific patronage dismissal case in the Supreme Court or Sixth Circuit before qualified immunity can be denied to any otherwise eligible defendant in such a case. If this were true, qualified Immunity would be converted into a nearly absolute barrier to recovering damages against an individual governmental actor in patronage cases because the reported case law classifies new positions very slowly.Id. The Court noted that in a situation where the inherent duties of the plaintiff's position are not apparent and the facts are not yet fully developed, it is not possible to decide upon interlocutory review of denial of a motion for summary judgment whether a defendant should be granted qualified immunity with respect to that position. Id. at 1558.
The defense of qualified immunity protects officials only from suit for monetary damages and does not provide immunity from suit for injunctive and declaratory relief. Mumford, 4 F.3d at 435.
IV. Opinion A. Plaintiff has not stated a claim for relief
Initially, the Court finds that plaintiff has alleged sufficient facts to support a finding that she was discharged from her position as Clerk based on political patronage. Defendant accepts as true for purposes of the motion to dismiss plaintiff's allegations that she filled out a job application and reported to defendant following his election, that defendant did not consider the job application but instead informed plaintiff that he would not be able to use her on his team, that plaintiff resigned rather than be fired, and that plaintiff was forced to resign because of her political preference and affiliation and defendant's requirement that the Clerk be his political supporter. The fact that plaintiff resigned after defendant informed her, in so many words, that he would not keep her on as Clerk is sufficient to establish that plaintiff was terminated from her job for purposes of applying the Branti/Elrod exception.
The burden is therefore on defendant to establish that the position of Clerk falls within the Branti/Elrod exception. Defendant argues that the Clerk is a Category Two position under McCloud because judges may delegate a significant amount of their discretionary authority to their clerks. Defendant also argues that the Clerk is a Category Three position because the Clerk is the sole entity through whom the judge speaks and she becomes aware of the judge's holdings before they are disclosed to the parties or the public. Defendant also asserts that the Clerk meets the general definition of a confidential employee under Branti. Defendant contends that the Clerk must handle sensitive and non-public information about cases and that the Clerk position becomes even more confidential in a small one-judge court like Mason Municipal Court, where the Clerk in essence functions as a de facto administrative assistant.
Plaintiff contends that defendant has gone outside the complaint to support his motion by cloaking additional facts as matters of law, such as by stating that clerks may be performing many tasks commonly performed by judges, clerks become aware of the judge's holdings before they are disclosed, and clerks handle sensitive and non-public information about cases.
The Court finds that it need not go beyond the face of the complaint and the statutes and rules setting forth the duties of the Clerk of Mason Municipal Court in order to determine whether plaintiff's position falls within the Branti/Elrod exception. Construing the allegations of the complaint in plaintiff's favor and considering the Clerk's responsibilities as delineated by the applicable statutes and rules, the Court finds that the position of Clerk of Mason Municipal Court falls within the Branti/Elrod exception as a matter of law. As explained below, the Clerk position entails sufficient duties encompassed within McCloud Categories Two and Three to lead the Court to this conclusion.
Pursuant to O.R.C. § 1901.31, a municipal court judge may delegate discretionary duties to the Clerk in addition to those specified in the statute. Under the statute and the local rules of Mason Municipal Court, the Clerk of that Court has a significant amount of discretionary, policy-making authority, specifically with respect to the enforcement of the law and the day-today operation of the Clerk's office. The local rules provide that the Clerk handles the first several. case management steps after a civil action is filed, with the Judge completing the remaining steps. The Clerk must prepare and safely maintain records of case filings and court proceedings. The Clerk has authority to approve bonds and sureties under certain circumstances, to issue "O.R." bonds for arrestees, and to make probable cause determinations for charges filed by law enforcement officers. The Clerk is expected to be able to assist with special complaints and circumstances in criminal matters outside of normal office hours. As in Blair, 76 F.3d 97, the Clerk also has significant discretionary authority over the handling of funds. The Clerk is responsible for preparing and maintaining financial records in a safe manner and disbursing funds, and she is authorized to select a banking institution where funds are to be deposited.
Moreover, the Clerk handles sensitive communications with the Judge and controls the lines of communication to the Judge with respect to certain matters. For instance, the Clerk is required to contact the Judge for a bond in a domestic violence case when a law enforcement officer makes a request to her. The Clerk is also responsible for communicating to the Judge requests for broadcasts and recordings. Further, as in Balogh, 855 F.2d 356, the Clerk handles confidential communications from the Judge in that she may learn about, and be in a position to discuss, case dispositions before they are announced to the public.
Finally, unlike Heggen, where the small number of deputy sheriffs was not a significant factor, the small size of the Mason Municipal Court unquestionably affects the nature of the Clerk position. The Court takes judicial notice that there is only one elected judge of the Mason Municipal Court. As the Clerk of the Mason Municipal Court reports to only that one Judge, she is the functional equivalent of the court officer/bailiff in Balogh who was assigned exclusively to one judge. Just as a judge relies on his bailiff, the Judge of the Mason Municipal Court must be able to rely on the Clerk to be present during court sessions and to assist him in fulfilling his judicial obligations while maintaining the confidentiality of his non-public activities. In each cases the Clerk/bailiff works in a close relationship with the elected judge, so that friction and animosities arising from political opposition may occur which could create an untenable job situation resulting in inefficient operation of the office.
For these reasons, the Court finds as a matter of law that the position of Clerk of Mason Municipal Court falls within the Branti/Elrod exception. Accordingly, defendant was entitled to take plaintiffs political affiliation and opposition into account in deciding not to retain her as Clerk of Court. Plaintiff can therefore prove no set of facts in support of her First Amendenmt claim which would entitle her to relief, and her claim must be dismissed pursuant to Rule 12(b)(6).
B. Qualified immunity
Assuming the Clerk position does not fall within the Branti/Elrod exception, the Court finds that the complaint for monetary damages must nonetheless be dismissed on qualified immunity grounds. The question to be answered in connection with defendant's assertion of the defense of qualified immunity is whether it would have been possible in January of 2002 for an individual in defendant's position to reasonably believe that the law allowed him to take political compatibility into account when deciding whether to retain an individual as Clerk of the Mason Municipal Court. The lack of a prior decision by the Supreme Court, the Sixth Circuit, or any other court as to whether the position of Clerk of a municipal court falls within the Branti/Elrod exception is not determinative. Rather, the Court must examine the duties of the particular position of Clerk of Mason Municipal Court in order to make such determination.
Plaintiff has adequately set forth the factual basis for her claim, and the inherent duties of the Clerk of Mason Municipal Court position are apparent from the statutes and rules which delineate those duties. The Court may therefore determine defendant's entitlement to qualified immunity based on the record before it. The Court finds that an individual in defendant's position could have reasonably believed that he could terminate plaintiff's employment based solely on her political opposition to him and a lack of political compatibility. Based on preexisting law, the unlawfulness of such action was not apparent at the time of plaintiff's termination. Accordingly, dismissal of plaintiff's claim for monetary damages is warranted on the alternative ground of qualified immunity.
V. Conclusion
Defendant's motion to dismiss is GRANTED. The case is DISMISSED and is TERMINATED on the docket of this Court at plaintiff's cost.