Brickner v. Voinovich

977 F.2d 235, 1992 U.S. App. LEXIS 25611, 1992 WL 276965
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 13, 1992
DocketNos. 91-4196, 92-3098
StatusPublished
Cited by28 cases

This text of 977 F.2d 235 (Brickner v. Voinovich) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brickner v. Voinovich, 977 F.2d 235, 1992 U.S. App. LEXIS 25611, 1992 WL 276965 (6th Cir. 1992).

Opinion

MERRITT, Chief Judge.

This section 1983 case arises from the removal of the plaintiff, a full-time federal official, from his elected seat on the Ohio Board of Education. The governor declared his seat vacant and replaced him. The plaintiff’s principal challenge to his removal concerns whether the defendants’ actions, which were implemented without a formal predeprivation hearing, violate procedural due process. We hold that adequate state mechanisms existed to provide due process to the plaintiff, and so we affirm the judgment of the District Court.

Plaintiff Brickner has been an administrative law judge with the Social Security Administration since 1981. In 1982 Brick-ner was elected to serve in a state-wide election as a member of the Ohio Board of Education. He requested and received permission from the federal government to serve in this elected, part-time position. He was reelected for a second term in 1988 and subsequently served as vice president and president of the Board.

The Ohio statute specifying the qualifications and salary of Board of Education members states that a board member “shall not during his term of office hold any other public position of trust or profit.” Ohio Rev.Code § 3301.031 (Baldwin 1988).1 While serving as the Board President, the plaintiff criticized and reprimanded the State Superintendent of Public Instruction, Walter, for allegations of nepotism and mismanagement of public funds. Soon thereafter another Board member, Shaffer, sharply questioned the plaintiff’s entitlement to serve on the Board because of the provisions of § 3301.031 and his position as an AU. The application of this statute’s “public position, of trust” language had never been called into question before. The majority of the board, including Brick-ner himself, therefore voted to seek an Attorney General opinion to clarify the application of § 3301.031 to a person in Brick-ner’s situation. Brickner himself wrote the letter requesting this advisory opinion to the state Attorney General.

The outgoing Attorney General issued an opinion in January 1991. He concluded that an AU held a “public position of trust” under the statute and that a board member may not simultaneously serve as an AU. See 91 Op.Ohio Att’y Gen. 001 2-5 (1991). Afterwards Superintendent Walter wrote the new Attorney General and asked whether Brickner could remain in office. The Attorney General responded in March 1991 that under Ohio common law, the acceptance by an officer of a second office incompatible with the first was equivalent to “an implied resignation or abandonment.” The Attorney General concluded that the plaintiff could be deemed to have vacated his post by operation of law. After receiving this letter Walter wrote the Governor, defendant Voinovich, and asked him to appoint a replacement to Brickner’s position within thirty days. The Governor delayed for approximately five months, and the plaintiff continued to serve on the Board until August 1991. In that month, the Governor finally appointed a replace[237]*237ment. Brickner was stricken from the Board’s membership roster by defendant Roush, his successor as Board President, after Brickner initiated this suit under 42 U.S.C. § 1983 in federal district court.

The plaintiff sought declaratory and in-junctive relief, including reinstatement, against the defendants in their individual and official capacities. The District Court dismissed Brickner’s suit after a hearing on a preliminary injunction. The court later denied the plaintiffs motions for a new trial and to amend his complaint to incorporate various additional constitutional arguments. This Court has jurisdiction under 28 U.S.C. § 1291.

The plaintiffs principal argument on appeal concerns whether his removal from his elected position violated the Due Process Clause by depriving him of property, in the form of his elected office for a term fixed by statute, without affording him an adequate opportunity for a hearing. To trigger this inquiry into due process, three factors must be considered: (1) some substantive right—life, liberty or property—must be at stake; (2) some deprivation of that substantive right must occur; and (3) the deprivation must occur without due process. If the process for the deprivation is adequate, then no due process violation has occurred. See generally Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1492, 84 L.Ed.2d 494 (1985); Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). In Vicory v. Walton, 721 F.2d 1062 (6th Cir.1983), cert. denied, 469 U.S. 834, 105 S.Ct. 125, 83 L.Ed.2d 67 (1984), we explained:

Policy considerations do not require a federal hearing in procedural due process cases that can be corrected in state court.... Section 1983 was not meant to supply an exclusive federal remedy for every alleged wrong committed by state officials. Rather, the statute is a remedy for only those wrongs which offend the Constitution’s prohibition against property deprivations without procedural due process. Thus we hold that in section 1983 damage suits claiming the deprivation of a property interest without procedural due process of law, the plaintiff must plead and prove that state remedies for redressing the wrong are inadequate. In a procedural due process case under section 1983, the plaintiff must attack the state’s corrective procedure as well as the substantive wrong.

Vicory, 721 F.2d at 1065-66. Assuming without deciding that a sufficient property interest is present to trigger due process analysis, it is clear to us that the available state procedures provided all the process that was due under Loudermill and our Court’s precedents.

The essence of due process is that a deprivation of a property or liberty interest must “be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950); see also Loudermill, 470 U.S. at 546, 105 S.Ct. at 1495. What form of hearing is “appropriate” depends in large part upon the timing of the hearing, i.e., whether it is given before or after the deprivation occurs. The Supreme Court has held that, depending on the circumstances, a pre-ter-mination hearing, although necessary, may not need to be elaborate, as long as the plaintiff is entitled to a full hearing with the possibility of judicial review at the post-termination stage. See Loudermill, 470 U.S. at 545-47, 105 S.Ct. at 1495-96.

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Cite This Page — Counsel Stack

Bluebook (online)
977 F.2d 235, 1992 U.S. App. LEXIS 25611, 1992 WL 276965, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brickner-v-voinovich-ca6-1992.