Monks v. Marlinga

923 F.2d 423, 1991 WL 626
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 8, 1991
DocketNo. 90-1323
StatusPublished
Cited by62 cases

This text of 923 F.2d 423 (Monks v. Marlinga) 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
Monks v. Marlinga, 923 F.2d 423, 1991 WL 626 (6th Cir. 1991).

Opinions

PER CURIAM.

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 activities,” (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 respecting 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 former prosecutor, George Parris. Marlin-ga 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. Mich.Comp.Laws Ann. § 49.33. Marlinga did not reappoint the Balkwills and Russ, and the district court correctly determined this to be a “constructive discharge.” Christian v. Belcher, 888 F.2d 410, 416 (6th Cir.1989) (citing Branti v. Finkel, 445 U.S. 507, 512 n. 6, 100 S.Ct. 1287, 1291 n. 6, 63 L.Ed.2d 574 (1980)).

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 amended 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 [425]*425moved respectively for dismissal and summary judgment under Rules 12(b)(6) and 56, Fed.R.Civ.P., on August 11, 1989. The district judge issued an order dismissing the section 1983 union activities claim pursuant to Rule 12(b)(6). The district judge granted summary judgment for the appel-lees on the section 1983 political affiliation claim and the state law slander claim. The district judge remanded the remaining claims to state court, and the appellants filed a timely appeal to this court.

The appellants appeal the district judge’s ruling that the union activities claim must be dismissed under Rule 12(b)(6). They assert that their first amendment free speech and associational rights are separate and distinct and, therefore, the district court erred in applying the Supreme Court’s free speech analysis in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), to their first amendment free association claim. The Connick Court held that in the discipline of public employees, only speech that involves a matter of “public concern” is protected by the first amendment. Id. at 146, 103 S.Ct. at 1689-90 (footnote omitted). This court held in Boals v. Gray, 775 F.2d 686, 692 (6th Cir.1985), that no logical reason exists for distinguishing between speech and association in applying Connick to first amendment claims, including union activities claims. Thus, appellants’ attempt to distinguish their freedom of association claim is without merit.

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 concern, 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 claim under the minimal requirements of notice pleading, Rule 8(a), Fed.R.Civ.P. We note, however, that appellees provided the affidavit of Marlinga, clearly stating that he was not aware of any union activities on the part of the Balkwills and Russ. We note further that the appellants failed to submit any affidavits whatsoever. Consequently, on this record the termination of the Balkwills and Russ could not have been the result of union activities. Thus, while dismissal under Rule 12(b)(6) was inappropriate, we hold that summary judgment was appropriate for appellees under Rule 56 on the union affiliation claim. Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266, 268 (6th Cir.1990).

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 appellants 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 analysis 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 the 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 “perform any [426]*426and all duties pertaining to the office of prosecuting attorney_” Mich.Comp. Laws Ann. § 49.42. Moreover, in holding that the job of public defender is not a policy-making position, the Supreme Court noted that a public defender’s responsibilities stand “in contrast to the broader public responsibilities of an official such as a prosecutor.” 445 U.S.

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Bluebook (online)
923 F.2d 423, 1991 WL 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monks-v-marlinga-ca6-1991.