United States Court of Appeals,
Eleventh Circuit.
No. 95-4807.
Barbara PARRISH, Dennis Wetzel, and Robert Lucas, Plaintiffs-
Appellants,
v.
Gary R. NIKOLITS, individually and in his official capacity as
the Property Appraiser of Palm Beach County, Florida, Defendant-
Appellee.
July 3, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 93-8322-CIV-KLR), Kenneth L. Ryskamp,
Judge.
Before CARNES and BARKETT, Circuit Judges, and DYER, Senior Circuit
Judge.
BARKETT, Circuit Judge:
Barbara Parrish, Dennis Wetzel and Robert Lucas appeal the
district court's grant of Gary Nikolits's motion for summary
judgment in both his individual and official capacities on their
claim that Nikolits violated their First Amendment rights by firing
them because they supported Nikolits's opponent in a recent
election.1 Parrish, Wetzel and Lucas were longtime employees of
the Palm Beach County Property Appraiser's Office. Nikolits was
the newly-elected Palm Beach County Property Appraiser.
Insofar as Nikolits was sued in his official capacity, we
vacate the order granting summary judgment and remand because the
district court applied the wrong standard in determining that
Parrish, Wetzel and Lucas held positions in the Appraiser's Office
1
Parrish, Wetzel and Lucas sued Nikolits under 42 U.S.C. §
1983 alleging that he violated their First Amendment rights to
free speech and association.
that were susceptible to patronage dismissal. Insofar as Nikolits
was sued in his individual capacity, we affirm the grant of summary
judgment because the law was not clearly established that
dismissing Parrish, Wetzel and Lucas for political reasons violated
their First Amendment rights.
I. Facts & Procedural Background
Parrish was Human Resources Director, Wetzel was Information
Technologies Director, and Lucas was Manager of the Property
Analysis Section of the Palm Beach County Property Appraiser's
Office. During the 1992 election for county property appraiser,
all three supported the Democratic candidate against Nikolits, who
was the Republican candidate and ultimate winner of the race for
County Property Appraiser.
After his election, but before taking office, Nikolits
notified Parrish, Wetzel and Lucas, as well as five other
Appraiser's Office employees, that he planned to fire them because
they had not supported him in the elections. Parrish's attorney
sent Nikolits a letter stating that such action would violate
Supreme Court cases prohibiting patronage firings of non-political
public employees. Nonetheless, the day he took office, Nikolits
fired Parrish, Wetzel and Lucas, as well as the five other
employees.
Prior to Nikolits taking office in January, 1993, Rebecca
Walker was Palm Beach County Appraiser2 from 1982 to 1993.
2
In Florida, the office of the county property appraiser is
a constitutionally created office. See Fl. Const. Art. VIII, §
1(d). The county property appraiser is charged with "determining
the value of all property within the county, with maintaining
certain records connected therewith, and with determining the tax
Although Parrish, Wetzel and Lucas all had been promoted during
Walker's tenure, none of the three had been hired by Walker.
Parrish and Lucas had worked for the Appraiser's Office in various
capacities since 1976 and 1981, respectively. Wetzel had worked
for either the Appraiser's Office or Palm Beach County since 1970.
All three thus had been employees of the Appraiser's Office or Palm
Beach County through the terms of at least two county appraisers
prior to Nikolits taking office in 1993.
After Nikolits fired them, Parrish, Wetzel and Lucas sued
Nikolits in both his individual and official capacities, alleging
that he had violated their First Amendment rights by firing them
for supporting his political opponent in the campaign for Palm
Beach County Property Appraiser. Nikolits moved for summary
judgment. He first argued that Parrish, Wetzel and Lucas had
offered no evidence that they were fired for political reasons.
Alternatively, Nikolits argued that, because Parrish, Wetzel and
Lucas held policymaking positions, Nikolits did not violate their
First Amendment rights even if he fired them for political reasons.
The district court granted summary judgment in favor of
Nikolits on the latter ground, both in his individual and official
capacities. On the official capacity claim, the district court
determined as a matter of law that Parrish, Wetzel and Lucas were
on taxable property after taxes have been levied." Fla.Stat. §
192.001(3) (1977). "Property appraisers may appoint deputies to
act in their behalf in carrying out the duties prescribed by
law." Fla.Stat. § 193.024 (1980). Property appraisals are
carried out pursuant to state statute, see § 193.011 et seq.
Florida Statutes, as well as professional appraisal standards
established by the International Association of Assessing
Officers and the Appraisal Institute.
"policymakers" and that, as such, Nikolits did not violate their
constitutional rights even if he had fired them for political
reasons. On the individual capacity claim, the district court held
that, because the law was not clearly established that persons
holding positions similar to those held by Parrish, Wetzel, and
Lucas were "policymakers," qualified immunity applied and Nikolits
did not violate clearly established law of which a reasonable
person would have known in dismissing them for political reasons.
We affirm the order granting summary judgment in favor of Nikolits
insofar as he was sued in his individual capacity because the law
was not clearly established that dismissing Parrish, Wetzel and
Lucas for political reasons violated their First Amendment rights.
But we vacate and remand the summary judgment insofar as Nikolits
was sued in his official capacity because we find that the district
court applied the wrong standard in making that determination.
II. Analysis
In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547
(1976), a newly-elected Democratic sheriff of Cook County,
Illinois, discharged certain non-civil service employees, including
the Chief Deputy of the Process Division, a bailiff/security guard,
and a process server, "because they did not support and were not
members of the Democratic Party and had failed to obtain the
sponsorship of one of its leaders." Id. at 351, 96 S.Ct. at 2678.
Writing for a three-judge plurality of the majority,3 Justice
3
Justice Brennan wrote an opinion, joined by Justices White
and Marshall. Justice Stewart wrote a separate opinion
concurring only in the judgment that was joined by Justice
Blackmun.
Brennan reasoned that the practice of patronage dismissals "clearly
infringes First Amendment interests," and that
if conditioning the retention of public employment on the
employee's support of the in-party is to survive
constitutional challenge, it must further some vital
government end by a means that is least restrictive of freedom
of belief and association in achieving that end, and the
benefit gained must outweigh the loss of constitutionally
protected rights.
Id. at 362, 96 S.Ct. at 2685. Justice Brennan considered and
rejected the interest of ensuring effective government and
efficient public employees as an end that justified patronage,
concluding that patronage dismissals were not the least restrictive
means of achieving this end because public employees could be
discharged for insubordination or poor job performance when those
bases in fact exist. Id. at 364-67, 96 S.Ct. at 2685-86. Justice
Brennan also considered and rejected the interest of preserving the
democratic process and partisan politics, concluding that, because
"patronage [also] is an effective impediment to associational and
speech freedoms," "the gain to representative government provided
by the practice of patronage, if any, would be insufficient to
justify its sacrifice of First Amendment rights." Id. at 369-70,
96 S.Ct. at 2688 (emphasis added).
Justice Brennan finally considered the need for political
loyalty of employees to the end that representative government not
be undercut by tactics obstructing the implementation of policies
of the new administration. He reasoned that "[t]he justification
is not without force, but is nevertheless inadequate to validate
patronage wholesale." He went on to state that "[l]imiting
patronage dismissals to policymaking positions is sufficient to
achieve this governmental end." Id. at 367, 96 S.Ct. at 2687.
Justice Brennan thus acknowledged a limited exception for
policymaking positions to the general prohibition against patronage
dismissals. He expounded on the contours of the exception:
No clear line can be drawn between policymaking and
nonpolicymaking positions. While nonpolicymaking individuals
usually have limited responsibility, that is not to say that
one with a number of responsibilities is necessarily in a
policymaking position. The nature of the responsibilities is
critical. Employee supervisors, for example, may have many
responsibilities, but those responsibilities may have only
limited and well-defined objectives. An employee with
responsibilities that are not well defined or are of broad
scope more likely functions in a policymaking position. In
determining whether an employee occupies a policymaking
position, consideration should also be given to whether the
employee acts as an adviser or formulates plans for the
implementation of broad goals.
Id. at 367-68, 96 S.Ct. at 2687. Justice Brennan noted that the
governmental entity carried the burden of demonstrating an interest
sufficient to override an encroachment on the First Amendment
rights of a public employee, and that close cases should be
resolved in favor of the employee.
In a short concurring opinion, Justice Stewart reasoned that
the "single substantive question involved ... is whether a
nonpolicymaking, nonconfidential government employee can be
discharged or threatened with discharge from a job that he is
satisfactorily performing upon the sole ground of his political
belief." 427 U.S. at 375, 96 S.Ct. at 2690 (emphasis added).
Justice Stewart's concurrence thus limited First Amendment
protection to positions that were both nonpolicymaking and
nonconfidential.
Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574
(1980), was the first case in which the Supreme Court announced a
majority opinion on the issue of patronage dismissals. Branti
involved two assistant public defenders who were among six
threatened with dismissal from a staff of nine because they were
Republicans. The Court held that the dismissals would violate the
First Amendment. In so holding, the Court stated that
"[t]he ultimate inquiry is not whether the label "policymaker'
or "confidential' fits a particular position; rather the
question is whether the hiring authority can demonstrate that
party affiliation is an appropriate requirement for the
effective performance of the public office involved."
Id. at 518, 100 S.Ct. at 1295.
Branti recognized that circumstances may exist in which "a
position may be appropriately considered political even though it
is neither confidential nor policymaking in character" but that
"party affiliation is not necessarily relevant to every
policymaking or confidential position." Id. at 518, 100 S.Ct. at
1294. Thus Branti recognized that a "policymaking" test would not
be appropriate for a state university football coach, for example,
even though he "formulates policy" in a sense, but such a test
would be appropriate for a nonpolicymaking gubernatorial assistant
hired to deal with political issues. Id.
With these principles in mind, we must determine whether, in
this case, the district court erred in concluding that Nikolits
legally could dismiss Parrish, Wetzel and Lucas. Although the
district court briefly cited Branti, it is clear from the district
court's order granting summary judgment for Nikolits that it
applied the standard set forth in Elrod, not Branti:
[T]he court finds that summary judgment is proper on the basis
that plaintiffs held policymaking positions. ... Patronage
dismissals of government employees holding policymaking
positions do not violate the First Amendment.... [I]n
determining whether an employee occupies a policymaking
position, consideration should be given to whether the
employee acts as an adviser or formulates plans for the
implementation of broad goals."
In so proceeding, the district court considered determinative the
fact that Parrish, Wetzel and Lucas were "policymakers."4
Although the record reflects disputed material facts as to
whether Parrish, Lucas and Wetzel were policymakers, the district
court committed a more basic legal error. After Branti, "[t]he
ultimate inquiry is not whether the label "policymaker' or
"confidential' fits a particular position," rather it is whether
the hiring authority can demonstrate that party affiliation is an
appropriate requirement for the effective performance of the public
office involved. Indeed, the former Fifth Circuit, shortly after
Branti was decided, interpreted Branti as "dismissing the labels
"confidential' and "policymaker' as irrelevant." See Barrett v.
Thomas, 649 F.2d 1193, 1200 (5th Cir. Unit A 1981).
It is important to place to the side issues that should not
enter an analysis of determining whether party affiliation is an
appropriate requirement for the effective performance of a
particular position. The interest in ensuring effective government
and efficient government employees should not be a factor in
determining whether an employee is susceptible to patronage
dismissal. This is an interest that is appropriately addressed by
dismissals for insubordination or incompetence. In addition,
4
The court acknowledged that factual disputes existed as to
whether Parrish, Wetzel and Lucas held confidential positions,
but concluded that there was no factual dispute that Parrish,
Wetzel and Lucas held policymaking positions and that, as a
result, they were subject to patronage dismissal.
political affiliation or loyalty does not equate with confidence an
elected official may have in his or her employees. See Branti, 445
U.S. at 520 n. 14, 100 S.Ct. at 1295-96 n. 14. Similarly, high
salaries are not indicative of a position that requires a
particular party affiliation as government employees' pay should be
a reflection of competence, ability and experience, rather than a
reward for party affiliation.
In reading Branti this way, we fall into line with those
circuits interpreting Branti as teaching that party affiliation
must be essential to effective performance of a position before an
employee holding that position can be susceptible to patronage
dismissal. See Dickeson v. Quarberg, 844 F.2d 1435, 1443 (10th
Cir.1988); Jones v. Dodson, 727 F.2d 1329 (4th Cir.1984). The
inherent powers and actual job responsibilities of the position
involved, and the relationship of the particular position to the
elected official, also should be part of the analysis. See Terry
v. Cook, 866 F.2d 373, 377-78 (11th Cir.1989); Ray v. Leeds, 837
F.2d 1542, 1544 (11th Cir.1988). We part ways with those circuits
that allow patronage dismissals in policymaking positions that do
not directly implicate partisan political concerns. See Jimenez
Fuentes v. Torres Gaztambide, 807 F.2d 236, 249-50 (1st Cir.1986);
Tomczak v. City of Chicago, 765 F.2d 633, 641 (7th Cir.1985).
In this case, the district court did not address how Nikolits
met his burden of demonstrating that party affiliation is an
appropriate requirement for the effective performance of the
positions at issue here, involving computers, appraisal standards
and personnel matters.
There is no evidence in the record as to whether the
Appraiser's Office, whose mission is to appraise property for tax
purposes based on formulae set by statute and professional
standards, even implicates partisan concerns in the first instance.
We conclude, in light of the current record, that summary judgment
insofar as Nikolits was sued in his official capacity must be
vacated.
Insofar as Nikolits was sued in his individual capacity, the
district court granted him summary judgment on qualified immunity
grounds. See, e.g., Hill v. Dekalb Regional Youth Detention Ctr.,
40 F.3d 1176, 1184-85 n. 16 (11th Cir.1994) (explaining the
difference between individual capacity claims and official capacity
claims). The plaintiffs appeal that order, as well. Because "[a]
decision on qualified immunity is separate and distinct from the
merits of the case," Lassiter v. Alabama A & M Univ. Bd. of
Trustees, 28 F.3d 1146, 1151 (11th Cir.1994) (en banc), our
previous discussion does not dispose of the qualified immunity
issues in this case.
The Supreme Court has explained that the policies behind the
qualified immunity defense dictate that it be decided as early as
possible in a case. See, e.g., Behrens v. Pelletier, --- U.S. ----
, ---- - ----, 116 S.Ct. 834, 838-40, 133 L.Ed.2d 773 (1996);
Anderson v. Creighton, 483 U.S. 635, 646 n. 6, 107 S.Ct. 3034, 3042
n. 6, 97 L.Ed.2d 523 (1987) ("[W]e have emphasized that qualified
immunity questions should be resolved at the earliest possible
stage of a litigation."). Accordingly, we turn to the district
court's order granting summary judgment to Nikolits in his
individual capacity on qualified immunity grounds.
Once a public official or employee defendant raises a
qualified immunity defense, the "plaintiffs bear the burden of
showing that the federal "rights' allegedly violated were "clearly
established.' " Lassiter, 28 F.3d at 1150 n. 3. In seeking to
discharge that burden, the plaintiffs in this case rely upon the
fact that their attorney sent Nikolits a letter warning him that
discharging plaintiffs would violate the law. Even if we were to
assume that that letter actually caused Nikolits to believe that
the action he took was contrary to federal law (and there is no
evidence that it did), we have previously held that the subjective
belief of the defendant is irrelevant to a qualified immunity
inquiry, because the measure is purely one of objective legal
reasonableness. Lassiter, 28 F.3d at 1150.
Plaintiffs also contend that Nikolits is not entitled to
qualified immunity, because the Elrod and Branti decisions clearly
established the constitutional rule of law that Nikolits' actions
violated.
Under our case law, Nikolits is entitled to qualified
immunity in his individual capacity unless Parrish, Wetzel and
Lucas can demonstrate not only that Nikolits violated Branti in
firing them, but also that it was clearly established at the time
that Nikolits's actions violated Branti. See Williamson v. F.H.
Mills, 65 F.3d 155, 157 (11th Cir.1995) (quoting Lassiter, 28 F.3d
at 1150). The Supreme Court stated in Anderson v. Creighton, 483
U.S. 635, 640, 107 S.Ct. 3034, 3039, 133 L.Ed.2d 773 (1987), that,
for a plaintiff to overcome qualified immunity,
the right the official is alleged to have violated must have
been "clearly established" in a more particularized, and hence
more relevant sense: The contours of the right must be
sufficiently clear that a reasonable official would understand
that what he is doing violates that right. 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, but it is to say that in the light of pre-existing
law the unlawfulness must be apparent.
483 U.S. at 640, 107 S.Ct. at 3039.
We recently held in Beauregard v. Olson, 84 F.3d 1402, 1405
(11th Cir.1996), that it was not clearly established under Branti
that the dismissal of clerical employees of a county tax
collector's office for political reasons violated their First
Amendment rights. Beauregard controls the qualified immunity
analysis in this case. Moreover, it is not entirely without
significance that the district court, with full briefing and two
years after Nikolits' actions, concluded that those actions did not
violate the law. Finally, we note that plaintiffs' argument that
the law was clearly established by Elrod and Branti is further
undermined by the split of the circuits concerning what those two
decisions mean. See supra our discussion at 2510; see also
Mitchell v. Forsyth, 472 U.S. 511, 533-36, 105 S.Ct. 2806, 2819-20,
86 L.Ed.2d 411 (1985) (holding that official defendant was entitled
to qualified immunity and noting that legal uncertainty about the
meaning of a Supreme Court decision was "reflected in the decisions
of the lower federal courts").
While we have endeavored in this opinion to provide some
specific guidance to the district courts on this subject, in
examining clearly established law for qualified immunity purposes,
we look only to the law as it existed on January 5, 1993, the date
Nikolits terminated the plaintiffs' employment. See, e.g.,
Mitchell, 472 U.S. at 530-36, 105 S.Ct. at 2817-20, 86 L.Ed.2d 411
(1985); Belcher v. City of Foley, Ala., 30 F.3d 1390, 1400 n. 9
(11th Cir.1994). Under these standards, we affirm the district
court's grant of summary judgment to Nikolits insofar as he was
sued in his individual capacity.
For the foregoing reasons, we AFFIRM the summary judgment
entered in favor of Nikolits on the individual capacity claims and
VACATE the summary judgment entered in favor of Nikolits on the
official capacity claims and remand this case to the district court
for further proceedings consistent with this opinion.
AFFIRMED in part, VACATED and REMANDED in part.