Rehearing and Suggestion for Rehearing En Banc Denied March 7, 1997.
KRUPANSKY, Circuit Judge.
The plaintiff-appellant, David M. Mumford ("Mumford"), has contested the district court's dismissal, as moot, of his 42 U.S.C. § 1983 claim against Judge David A. Basinski ("Basinski"), the successor in office of Mumford's former employer, former Judge Joseph C. Zieba ("Zieba"), who during his judicial tenure was the Administrative Judge of the Lorain County Common Pleas Court Domestic Relations Division ("the Domestic Relations Court"). The complaint had sought equitable relief for the political termination by Zieba of Mumford's at-will employment as the chief referee of the Domestic Relations Court in alleged violation of his First Amendment rights. On September 28, 1995, the trial court ruled that Mumford's claims against Basinski, as successor in office to Zieba, became moot upon the expiration of Zieba's term as a judge of the Domestic Relations Court which had resulted in Zieba's dismissal as a party defendant, and that Lorain County, Ohio, the identified interested public entity, had been previously dismissed as a defendant by virtue of the Sixth Circuit's dismissal, in Mumford v. Zieba, 4 F.3d 429, 435 (6th Cir.1993), of the Domestic Relations Court as a party defendant. Mumford v. Zieba, 915 F.Supp. 917 (N.D.Ohio 1995).
Mumford, a registered member of the Democratic Party, served as a referee of the Domestic Relations Court from 1984 until January 2, 1989. In 1988, Mumford aided a Democratic incumbent judge of the Domestic Relations Court, Henry T. Webber, in his reelection bid against his Republican challenger, Joseph Zieba. Zieba prevailed in the November 1988 election. During the campaign, Zieba had expressly advised Mumford, "don't get caught in the cross-fire." On December 22, 1988, Zieba, as judge-elect of the Domestic Relations Court who would serve as the Administrative Judge of that court, informed Mumford by letter that his employment with the Domestic Relations Court would terminate immediately upon Zieba's assuming office on January 3, 1989.
On December 17, 1990, the plaintiff initiated this action against the Domestic Relations Court, and Zieba in both his personal and official capacities, under 42 U.S.C. § 1983, alleging that he had been terminated because of his political affiliation, which purportedly deprived him of his First Amendment rights. The plaintiff sought damages, declaratory relief, and an injunction compelling his reinstatement with back pay and benefits plus interest. On March 31, 1992, the district court, in deciding cross motions for summary judgment, inter alia denied Zieba's summary judgment motion anchored in qualified immunity. Mumford v. Zieba, 788 F.Supp. 987, 991-92 (N.D.Ohio 1992), rev'd, 4 F.3d 429 (6th Cir.1993). On September 1, 1993, this court reversed the rejection of Zieba's qualified immunity defense, ruling that the law was not clearly established in January 1989 that a state court judge could not refuse to retain an at-will court referee for political reasons. Mumford v. Zieba, 4 F.3d 429, 433 (6th Cir.1993). In addition to dismissing Mumford's claims against Zieba in his individual capacity, this reviewing court also dismissed the Domestic Relations Court as a party defendant because a section 1983 claim is not cognizable against a state court. Id. at 435 (citing Foster v. Walsh, 864 F.2d 416, 418 (6th Cir.1988) (per curiam)). This court remanded the cause to the trial court for adjudication of the remaining claims, to wit, Mumford's claims for equitable relief asserted against Zieba in his official capacity. Mumford, 4 F.3d at 435.
On January 2, 1995, Zieba's six-year term of office on the Domestic Relations Court expired. On February 13, 1995, the district
A state court is not a "person" for purposes of 42 U.S.C. § 1983 and hence is not subject to lawsuit under that statute.
The central inquiry confronting this appellate review is whether the Domestic Relations Court is a state of Ohio entity, or instead is an appendage of the Lorain County government, for section 1983 purposes. If the Domestic Relations Court is deemed a part of the state government, Eleventh Amendment immunity will shield it, and its officers in their official capacities, from section 1983 legal actions in federal court; if it is construed as an extension of the county government, the section 1983 claims against the office of Administrative Judge of that court may proceed as, in effect, an action against Lorain County. Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3104-05, 87 L.Ed.2d 114 (1985).
In Foster v. Walsh, 864 F.2d 416 (6th Cir.1988) (per curiam), this circuit mandated that an Ohio municipal court was not an arm of the municipality which it served, concluding that the court was a component of the state government and hence was insulated from private federal court litigation by the Eleventh Amendment:
Foster is existing precedent in this circuit and applies in the instant case. The Ohio Constitution commands that within the judicial system of that state:
Ohio Const. art. IV, § 4(A).
Additionally, the fundamental law of Ohio imparts supervisory authority over all courts of that state, and the authority to promulgate rules for all courts of that state, to the Ohio Supreme Court. Ohio Const. art. IV, § 5. The state constitution also dictates standards controlling the election, residency, tenure, compensation, and eligibility of every Ohio common pleas judge. Ohio Const. art. IV, § 6.
Like all Ohio common pleas court judgeships, the six extant Lorain County Common
Similarly, state statutes delineate the jurisdiction of the common pleas court. Ohio Rev.Code Ann. § 2305.01 et seq. (Anderson 1995 & Supp.1995). Moreover, the authority to hire personnel, including referees, for the domestic relations courts is delegated by state statute to the courts themselves rather than to county administrations; such employees of the domestic relations courts are compensated from special court funds rather than from county treasury general revenues.
Furthermore, the Ohio legislature has compelled the county governments to provide support for the operation of the common pleas courts within their borders. For example, each board of county commissioners must provide a location for conducting sessions of court, Ohio Rev.Code Ann. § 305.22 (Anderson 1992), and must erect and sustain a courthouse where needed, Ohio Rev.Code Ann. § 307.01(A) (Anderson 1992). A state statute empowers the common pleas court to submit to the local board of county commissioners an annual written request for administrative expense funds which the court deems reasonably necessary; if, after conducting a public hearing on the court's funding request, the amount allocated by the county to the common pleas court is deemed insufficient by that court, the common pleas court may petition the state court of appeals, via a petition for a writ of mandamus under Ohio Revised Code Chapter 2731, for a judicial determination of the duty of the board of county commissioners to appropriate the additional funds in dispute. Ohio Rev.Code Ann. § 307.01(B) (Anderson 1992); see also State ex rel. Morley v. Lordi, 72 Ohio St.3d 510, 511-12, 651 N.E.2d 937, 939 (1995) (a juvenile court, as a division of an Ohio common pleas court, may seek a writ of mandamus in the Ohio Supreme Court to compel a county board of commissioners to appropriate funds necessary for the reasonable expenses of the court).
Consequently, an Ohio common pleas court is not a segment of county government, but an arm of the state for purposes of section 1983 liability and Eleventh Amendment immunity analyses.
In the alternative, the case sub judice was properly dismissed because Mumford's former position was, as a matter of law, not protected by the First Amendment. In Mumford v. Zieba, 4 F.3d 429 (6th Cir. 1993), this circuit recognized the Supreme Court's dictate that, in many circumstances, a public employee may not be dismissed because of his political beliefs or activities;
Mumford, 4 F.3d at 434. See also McCloud v. Testa, 97 F.3d 1536, 1553 (6th Cir.1996).
The effective performance of a subordinate "political" public office requires that the employee and supervisor maintain a viable working relationship, which includes confidence by the supervisor in the employee's political credentials and philosophy, as well as his intellectual and technical abilities. In the instant case, candidate Zieba had promised, if elected, to "clean house" at the Domestic Relations Court by eliminating Webber's supporters from the court staff. As Zieba in essence campaigned against Webber and his appointees and supporters on the court staff (including Mumford, an active Webber supporter), Zieba could not expect to have a viable working relationship with, or much confidence in the political loyalty of, that court staff. Rather, friction and animosity were probable expectations, which would undermine any close working relationship between Zieba and the incumbent chief referee.
In Mumford v. Zieba, 4 F.3d 429, 433 (6th Cir.1993), this court lacked the occasion to directly address Mumford's former position as political versus non-political, but clearly implied that a court referee, of necessity, had a confidential relationship with the judge whom he served, which transformed political affiliation into an appropriate employment consideration.
Although the inherent duties of a state public officer are generally delineated by state law, the unique duties of a particular office holder are typically fact driven. However, the characterization of the position's general or specific duties as nonpolitical or political is a question of law. See McCloud v. Testa, 97 F.3d 1536, 1546 (6th Cir.1996); Blair v. Meade, 76 F.3d 97, 100 & n. 2 (6th Cir.1996). Accordingly, if, as a matter of law, the inherent duties of a referee in the service of an Ohio Domestic Relations Court are political in character, patronage considerations may justifiably influence or control the court's appointment to that post, and any
Rule 75(C) of the Ohio Rules of Civil Procedure creates the basic inherent duties of a Domestic Relations Court referee. Rule 75(C) posits that "Rule 53 shall apply to all cases or issues directed [by the court] to be heard by a referee." As this court resolved in Mumford, 4 F.3d at 430 n. 1:
The powers of the referee include, inter alia, the conduct of hearings on the matters referred to him, the issuance of subpoenas, the swearing and examination of witnesses, and (unless otherwise specified in the order of reference) the promulgation of evidentiary rulings and the entry of certain pretrial, discovery, temporary restraining, and other orders necessary to regulate the proceedings, all without judicial ratification. Ohio R. Civ. P. 53(C)(2) & (3). However, the referee's decisions otherwise are mere recommendations which become effective only upon adoption by the court. Ohio R. Civ. P. 53(E)(4)(a).
Unquestionably, the inherent duties of an Ohio domestic relations court referee entail a relationship of confidence between the referee and the judge(s) which he serves. The referee is privy to confidential litigation materials and internal court communications in the discharge of his duties, and further maintains a personal confidential relationship with the judge(s) which he serves. See Blair, 76 F.3d at 101; Balogh v. Charron, 855 F.2d 356 (6th Cir.1988). Moreover, the referee effectively makes policy for, or suggests policy to, the court on each occasion that he resolves a dispute in the court's name or recommends a disposition to a judge. Consequently, his supervising judge must be convinced that the judgment capabilities of the referee, and the confidential relationships that arise as a result of the intimate judicial and quasi-judicial discussions, are unquestionable. The referee's political ideology, associations, and activities may rationally influence a judge's assessment of an individual's suitability for a position as his referee.
Since the hearing of this appeal, this circuit in McCloud v. Testa, 97 F.3d 1536 (6th Cir.1996), outlined four general categories of public occupations characterized as "political" which are validly subject to patronage considerations and therefore are not shielded by the First Amendment:
Id. at 1557 (notes omitted).
The inherent duties of an Ohio domestic relations court referee, as illuminated above,
For these reasons, this court is constrained to rule that Mumford's former position as a referee for the Domestic Relations Court was an inherently political post which was not safeguarded from political patronage termination by the First Amendment, and therefore the plaintiff's official capacity claim under section 1983 must be rejected.
Finally, this appellate review considers the trial court's ruling that Mumford's request for equitable relief became moot upon the expiration of Zieba's judicial term and the assumption of the duties of Administrative Judge by Basinski. The district court decided that no relief remained available to Mumford because Zieba (the allegedly offending individual) was no longer a party to the lawsuit, and because no conclusive evidence indicated that Basinski (the sole remaining defendant) had followed, or intended to continue, the allegedly offensive employment practices of Zieba. Mumford v. Zieba, 915 F.Supp. 917, 918-19 (N.D.Ohio 1995) (quoting Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 622, 94 S.Ct. 1323, 1334, 39 L.Ed.2d 630 (1974)). The lower court's analysis constituted legal error.
In Mayor of Philadelphia, the Court dictated that no prospective coercive relief can issue against a current public official which is designed to forestall future discriminatory practices of a type committed by the official's predecessor in office, in the absence of findings that the successor official intends to continue his predecessor's discriminatory practices. 415 U.S. at 622, 94 S.Ct. at 1334. This rule has no application in the instant case. Mumford's cause of action against Zieba sought relief from alleged past unconstitutional employment discrimination against him, not to preclude perpetration of similar discriminatory practices against others in the future. Federal Rule of Civil Procedure 25(d) provides for the automatic substitution of a successor public official upon the departure from office of a person named in official capacity litigation:
The Supreme Court has observed that "[t]he rules effectuating automatic substitution of public officers were specifically designed to prevent suits involving public officers from becoming moot due to personnel changes. See Advisory Committee Notes on 1961 Amdt. to Fed.Rule Civ.Proc. 25(d)(1), 28 U.S.C., pp. 568-569." Karcher v. May, 484 U.S. 72, 83, 108 S.Ct. 388, 395, 98 L.Ed.2d 327 (1987). Because Mumford's action against Zieba as the Administrative Judge of the Domestic Relations Court was effectively a claim against the office of Administrative Judge, see Fed.R.Civ.P. 25(d)(2), the claim (if otherwise valid) would survive Zieba's departure from the bench. See, e.g., Gonzalez Torres v. Toledo, 586 F.2d 858, 859-60 (1st Cir.1978). Consequently, the substitution of Basinski in Zieba's stead did not render Mumford's cause against the Administrative Judge of the Domestic Relations Court moot. Rather, as developed above, Mumford's official capacity case must be dismissed on the alternate rationales that (1) the Eleventh Amendment precluded it as a jurisdictionally improper claim against a state government prosecuted in federal court, and (2) the First Amendment as a matter of law did not protect
Accordingly, although this review rejects the reasoning of the district court, it hereby
U.S. Const. amend. XI.
This constitutional mandate has long been liberally construed by the Supreme Court to extend state immunity to federal suit to reach actions potentially initiated by any person against an unconsenting state, including causes inaugurated by a citizen or citizens of the subject state itself, as well as certain other classes of litigation. E.g., Seminole Tribe of Florida v. Florida, ___ U.S. ___, ___-___, 116 S.Ct. 1114, 1122-23, 134 L.Ed.2d 252 (1996); Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974); see generally Standing Rock Sioux Indian Tribe v. Dorgan, 505 F.2d 1135, 1138 (8th Cir.1974) (citing multiple Supreme Court decisions).
Under certain limited circumstances, Congress, when acting under a proper constitutional grant of authority, may expressly abrogate the states' Eleventh Amendment immunity respecting enforcement of a particular statute. See Seminole Tribe, ___ U.S. at ___-___, 116 S.Ct. at 1123-32; Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 425-26, 88 L.Ed.2d 371 (1985); Wilson-Jones v. Caviness, 99 F.3d 203, 208 (6th Cir.1996). However, Congress did not abrogate the states' Eleventh Amendment immunity from legal actions in federal court by enacting section 1983. Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358 (1979); In re Secretary of Dept. of Crime Control, 7 F.3d 1140, 1149 (4th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 2106, 128 L.Ed.2d 667 (1994); Williams v. Missouri, 973 F.2d 599, 600 (8th Cir.1992) (per curiam).
Additionally, a state may waive its Eleventh Amendment immunity, usually via legislative enactment. Wilson-Jones, 99 F.3d at 206 n. 1. Ohio has statutorily waived its state sovereign immunity against certain state court actions by consenting to exposure to private litigations in the Ohio Court of Claims, subject to certain limitations and conditions. See Ohio Rev.Code Ann. § 2743.02 (Anderson Supp.1995). This limited legislative renunciation of governmental immunity has no application to the instant action.
Kentucky v. Graham, 473 U.S. at 165-66, 105 S.Ct. at 3105 (emphasis added) (citation omitted).
Therefore, the instant official capacity litigation is independently fatally defective because the state of Ohio had not been afforded timely notice and an opportunity to respond to the complaint.
It should also be noted that Mumford's cause against the named Administrative Judge in his official capacity as a state officer cannot be salvaged by invocation of the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In Ex parte Young, the Court mandated that, at least in some cases, a claim solely for prospective injunctive relief restraining a state official from continuing an ongoing violation of federal law may not be barred from federal court by the Eleventh Amendment. See Seminole Tribe of Florida v. Florida, ___ U.S. ___, ___, 116 S.Ct. 1114, 1132, 134 L.Ed.2d 252 (1996); Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 425-26, 88 L.Ed.2d 371 (1985). However, cases against a state officer in which a claim for retrospective relief for past violation(s) of federal law is joined, such as the action at issue, are not exempted from the Eleventh Amendment's jurisdictional bar. Green, 474 U.S. at 68, 106 S.Ct. at 425-26.