IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-41075
Summary Calendar
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PAUL E. SKELTON,
Plaintiff-Appellee,
VERSUS
HAL CAMP, ALDERMAN OF THE MUNICIPALITY OF PARKER; DAVID
HAMMEL, ALDERMAN OF THE MUNICIPALITY OF PARKER; ROBERT
MONTGOMERY, ALDERMAN OF THE MUNICIPALITY OF PARKER; BILL
WADE, ALDERMAN OF THE MUNICIPALITY OF PARKER; AND ROBERT DAWES;
Alderman of the Municipality of Parker,
Defendants-Appellants.
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Appeal from the United States District Court
for the Eastern District of Texas
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December 12, 2000
Before SMITH, BENAVIDES, and the appeal for want of jurisdiction.
DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge: I.
Paul Skelton was elected mayor of Parker,
Certain municipal officials appeal the denial Texas, on May 4, 1996, but a year later, the
of their motion for summary judgment in this citizens of Parker presented the aldermen with
action brought for alleged violations of charges for cause to remove him. The
statutory and constitutional rights. We dismiss aldermen conducted a trial in closed session in
accordance with TEX. LOC. GOV’T CODE ANN. longer available, because Skelton’s term had
§ 21.001 and removed Skelton, who then sued ended. The court granted summary judgment
the aldermen in their official capacities for re- to the aldermen on Skelton’s First Amendment
instatement and damages to his reputation. He retaliation claims but denied summary
asserted causes of action for violations of his judgment as to the due process claim, because
free speech and due process rights under the there were fact issues to be decided by a jury.
United States and Texas constitutions; the
Texas Open Meetings Act, TEX. GOV’T CODE The aldermen appeal the denial of summary
ANN. §§ 551.001-.146; and TEX. LOC. GOV’T judgment on the due process claim, asserting
CODE ANN. § 21.002. The aldermen removed their entitlement to judicial immunity under the
the case to federal court on the ground that Eleventh Amendment.1 State officials sued in
Skelton’s constitutional claims presented a their official capacities are not persons subject
federal question. See 28 U.S.C. § 1331. to suit under § 1983. Will v. Michigan Dep’t
Skelton then amended his suit to include a of State Police, 491 U.S. 58, 71 (1989). If the
claim under 42 U.S.C. § 1983 for damages to aldermen acted as state officials carrying out
his reputation. state law, they enjoy immunity under the
Eleventh Amendment. Pennhurst v.
The aldermen amended their answer to as- Halderman, 465 U.S. 89, 121 (1984).
sert judicial immunity, relying on a Texas case
decided during the course of this suit that held Skelton moves to dismiss the appeal,
that aldermen of a general-law municipality are contending that this court does not have jur-
officers of the state acting in the role of judges isdiction, or in the alternative, that the
when conducting a removal trial under § Eleventh Amendment may not offer an af-
21.002. See State ex rel. White v. Bradley, firmative defense to the aldermen, because
956 S.W.2d 725 (Tex. App.SSFort Worth they are not sued in their individual capacities.
1997), rev’d on other grounds by Bradley v. Additionally, Skelton urges us to find that the
State ex rel. White, 990 S.W.2d 245 (Tex. Eleventh Amendment does not apply here, be-
1999). They then moved to dismiss for failure cause (1) the city made the decision to remove
to state a claim on which relief could be grant- Skelton; or, (2) in the alternative, that the “re-
ed and asserted judicial immunity based on the moval court” is itself a local political
analysis in White. See FED. R. CIV. P. subdivision.
12(b)(6). The district court denied the motion
to dismiss without explicitly addressing the II.
claim of judicial immunity, relying instead on We have jurisdiction to review the denial of
the need for a reviewing court to examine the summary judgment under the collateral order
entire record of the removal trial. See Riggins doctrine if the aldermen acted as state officials,
v. City of Waco, 93 S.W. 426 (1906). but we have no jurisdiction if they acted as
The district court granted summary
judgment for Skelton with regard to his claim 1
“The judicial power of the United States shall
that the removal was substantively and not be construed to extend to any suit in law or
procedurally defective under § 21.002, but it equity, commenced or prosecuted against one of the
found that the remedy of reinstatement was no United States by Citizens of another State . . . .”
U.S. CONST. amend. 11.
2
municipal officers. A denial of summary absolute official immunity under the collateral
judgment is not a final order within the order doctrine.
meaning of 28 U.S.C. § 1291. Lemoine v.
New Horizons Ranch & Ctr., Inc., 174 F.3d By contrast, if the aldermen acted not on
629, 633 (5th Cir. 1999). behalf of the state, but rather as municipal of-
ficers when they removed Skelton from office,
In Cohen v. Beneficial Indus. Loan Corp., we do not have jurisdiction. Although a state
337 U.S. 541 (1949), however, the Court rec- or its officers sued in their official capacities
ognized an exception to this final order may raise immunity defenses on interlocutory
requirement for certain collateral appeals. The appeal, a municipal government may not. Nic-
denial of an Eleventh Amendment immunity oletti v. City of Waco, 947 F.2d 190, 191-92
claim falls within this exception. Puerto Rico (5th Cir. 1991) (citing McKee v. City of Rock-
Aqueduct & Sewer Auth. v. Metcalf & Eddy, well, 877 F.2d 409, 412 (5th Cir. 1989)). Be-
506 U.S. 139, 144-45 (1993); Mitchell v. cause a suit against the aldermen in their of-
Forsyth, 472 U.S. 511, 525-30 (1985). ficial capacities is the functional equivalent of
a suit against the entity they represent, see
Although the parties dispute whether the Kentucky v. Graham, 473 U.S. 159, 165-66
Eleventh Amendment claim was presented to (1985), if the aldermen represented the city
the district court, “the Eleventh Amendment rather than the state during the removal
immunity defense sufficiently partakes of the proceedings, we have no jurisdiction. See
nature of a jurisdictional bar so that it need not Jacobs v. West Feliciana Sheriff’s Dep’t, 228
be raised in the trial court.” Edelman v. F.3d 388, ___, 2000 U.S. App. LEXIS 23177,
Jordan, 415 U.S. 651, 678 (1974). We have at *9-*10 (5th Cir. Sept. 13, 2000).
jurisdiction over an interlocutory appeal of the
denial of summary judgment involving III.
absolute immunity where there are no material The question, then, is whether, in the
facts in dispute. Quirk v. Mustang Eng’g, removal proceeding, the aldermen represented
Inc., 143 F.3d 973, 975 (5th Cir. 1998). the State of Texas or the municipality.2 We
conclude that they represented the
Even though the district court did not ex- municipality.
pressly address the Eleventh Amendment im-
munity claim, that claim still forms the basis The determination of whether an official
for the appeal. Asserting jurisdiction in this
case, then, supports the policy of protecting
the “entitlement not to stand trial or face the 2
other burdens of litigation.” Mitchell, 472 The alderman also argue that they are entitled
to “judicial immunity,” a state law doctrine
U.S. at 526. This entitlement is “effectively
functionally identical to the absolute immunity
lost if a case is erroneously permitted to go to accorded judges acting in their judicial capacity in
trial.” Swint v. Chambers County Comm’n, § 1983 claims. See Beck v. Texas State Bd. of
514 U.S. 35, 42 (1995). Thus, the aldermen’s Dental Exam’rs, 204 F.3d 629 (5th Cir. 2000),
claim that they are entitled to absolute official cert. denied, 69 U.S.L.W. 3022 (U.S. Oct. 2,
immunity falls within the ambit of the general 2000) (No. 00-3). Because this doctrine applies
rule allowing interlocutory appeals based on only to officers sued in their individual capacity, it
has no bearing on the outcome.
3
acts on behalf of the city or the state is a mat- 947 (interpreting the city’s charter mandating
ter of state law. McMillian v. Monroe “due notice and opportunity to be heard” as
County, 520 U.S. 781, 786 (1997). The requiring a trial proceeding). The city charter
aldermen contend that because state law did not indicate that the removal process was
governed the removal proceedings, they acted a “court,” nor did it suggest that the city
as state officials rather than municipal officials. council members in the removal process acted
At the time of Skelton’s removal, § 21.002 as judges.
governed a mayor’s removal from office in a
general-law municipality3 and required the Here, the aldermen made a similar removal
aldermen to sit as a “court” over the removal decision. No law or policy justifies treating
“trial.” See § 21.002(f), (g), (h). Additionally, removal decisions of “general law”
aldermen assume the role of judges in a municipalities differently from those of other
removal trial. Bradley, 990 S.W.2d at 249 municipalities when both entities make
(Tex. 1999). functionally identical determinations.
The mere fact that the aldermen acted in IV.
accordance with state law, however, does not The aldermen contend that the removal
resolve the question dispositively. Because procedure represents an independent entity,
Parker is a “general law” city, it derives its the “removal court.” Whether they acted as
powers from state statutes rather than from a municipal policymakers in the removal trial has
city charter. See 22 DAVID B. BROOKS, no bearing on the question of immunity,
TEXAS PRACTICE: MUNICIPAL LAW AND however. When individuals are sued in their
PRACTICE §§ 1.14, 3.14 (2d ed. 1999). official capacities under § 1983, the
Moreover, the assumption of a judicial role determination of which entity a defendant
does not transform the aldermen into state serves as policy maker presents a liability
actors. Indeed, aldermen participating in a issue, not an immunity issue. Hudson v. City
removal proceeding “are not members of the of New Orleans, 174 F.3d 677, 681 n.1 (5th
judiciary, they assumed judicial roles.” Cir.), cert. denied, 120 S. Ct. 498 (1999);
Bradley, 990 S.W.2d at 249. Swint, 514 U.S. at 43.
In Riggins v. Richards, 77 S.W. 946 (Tex. Thus, any transformation of the aldermen
1904), an analogous case involving a city gov- into state court judges in the removal
erned by a charter, the court reviewed a proceeding still does not afford them Eleventh
removal trial proceeding in which the city Amendment immunity. Rather, it would mean
council had removed the mayor. The court that the wrong entity had been sued, because
found that the removal proceeding must be the actions of the aldermen cannot be
handled as an adjudicative proceeding. Id. at attributed to the municipality. Moreover, be-
cause this type of liability determination does
not present an immunity issue, it does not fall
3
Since the time of Skelton’s removal, Texas within the collateral order doctrine, and we
has replaced § 21.002 with §§ 21.021-.032, which have no jurisdiction to address it.
places the power of removal in the hands of a state
district judge. See TEX. LOC. GOV’T CODE ANN. The aldermen bear the burden of proof in
§§ 21.021-.032.
4
demonstrating that the “removal court” is an are not the same as for other courts in the state
arm of the state entitled to Eleventh system. Therefore, the “removal court” is not
Amendment immunity. See ISTI TV Prods., part of the town itself, but is part of the local
Inc. v. Agricultural Ass’ns, 3 F.3d 1289, 1291 governing structure.
(9th Cir. 1993); Christy v. Pennsylvania
Turnpike Comm’n, 54 F.3d 1140, 1144 (3d The second factor is usually accorded the
Cir.), cert. denied, 516 U.S. 932 (1995). We most weight. See Delahoussaye v. City of
have adopted a six-factor test for evaluating New Iberia, 937 F.2d 144, 147-48 (5th Cir.
whether a governmental entity is an arm of the 1991). The parties agree that the State of
state entitled to Eleventh Amendment Texas gives the “removal court” no funding.
immunity. Clark v. Tarrant County, 798 F.2d The “court” used entirely city facilities and
736, 744-45 (5th Cir. 1986). staff. The aldermen do not suggest that the
state would not pay any judgment rendered
These factors include (1) whether the state against the “removal court.”
law considers the entity as an arm of the state;
(2) the source of the entity’s funding; (3) the The remaining factors also counsel in favor
entity’s degree of local autonomy; (4) whether of finding that any “removal court” that may
the entity is concerned primarily with local or exist is a purely local entity. The aldermen
statewide problems; (5) whether it has the have complete local autonomy with regard to
authority to sue and be sued in its own name; the removal proceeding, which addresses pure-
and (6) whether it has the right to hold and use ly local problems. The entity cannot sue and
property. Anderson v. Red Riv. Waterway be sued, nor can it hold and use property.
Comm’n, No. 99-31334, slip op. at __ (5th Thus, the aldermen have not met their burden
Cir. Nov. 8, 2000). These factors aid the of proof in demonstrating that they are entitled
court in identifying whether a suit is really to immunity because they acted on behalf of a
against the state itself. Laje v. R.E. Thomason state “removal court.”
Gen. Hosp., 665 F.2d 724, 727 (5th Cir.
1982). Therefore, the aldermen have demonstrated
neither that they acted as state officials nor
Texas statutes and caselaw do not suggest that the “removal court” is an arm of the state.
that a “removal court” would be considered an Because the aldermen are municipal officers
arm of the state. It is not identified as part of sued in their official capacity, we do not have
the Texas court system in the Texas jurisdiction to review the denial of summary
Government Code. It is not supervised by the judgment.
Texas Judicial Council. See TEX. GOV’T CODE
ANN., Subtitle F. It has jurisdiction only with- The appeal is DISMISSED for want of
in the town of Parker. See TEX. LOC. GOV’T jurisdiction.
CODE ANN. § 21.002 (1999). Its procedures
are set forth in the local, not statewide, section
of the state code. Id. The “judges” are the
aldermen, not judges elected in accordance
with the usual state procedures. The process
for appealing the “removal court’s” decisions
5