                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 05a0607n.06
                               Filed: July 19, 2005

                                                 04-1510

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


GARY KULAK,                                           )
                                                      )
        Plaintiff-Appellant,                          )
                                                      )
v.                                                    )    ON APPEAL FROM THE UNITED
                                                      )    STATES DISTRICT COURT FOR THE
CITY OF BIRMINGHAM et al.,                            )    EASTERN DISTRICT OF MICHIGAN
                                                      )
        Defendants-Appellees.                         )




        Before: NORRIS and DAUGHTREY, Circuit Judges, and JORDAN,* District Judge.


        PER CURIAM. The plaintiff, Gary Kulak, was removed from his position on the

planning board of the city of Birmingham, Michigan, by a vote of the city commission. He

sued the city and several of the members of the commission, charging violation of his due

process rights under the federal and state constitutions and seeking an injunction restoring

him to his position. The district court dismissed the complaint after finding that Kulak had

no property rights in his position on the board and that he had not alleged a liberty interest.

Because the district court’s order was based on a thorough and accurate reading of the

law, we affirm the lower court’s judgment.




        *
         The Hon. Leon Jordan, United States District Judge for the Eastern District of Tennessee, sitting by
designation.
04-1510
Kulak v. City of Birmingham


                    FACTUAL AND PROCEDURAL BACKGROUND


       Plaintiff was appointed by the Birmingham city commission to serve a second three-

year term on the Birmingham city planning board in March 2003.           The function of the

planning board is to “advise the city commission in regard to the proper development of the

city.” Ordinance 82-33.


       According to the plaintiff, there was a growing political division within the city over

the direction of development. One side “supported free development, guided solely by the

latest whimsical desires of developers,” and the other “sought a more balanced approach.”

The former group created an internet publication called “Buzz,” in which, according to the

plaintiff, he came into criticism for his “adherence to, and upholding of” city zoning

regulations. The group published articles calling for the plaintiff’s and other planning board

members’ removal.


       The defendants, conversely, submit that during the time leading up to the plaintiff’s

second appointment and continuing afterward, there was a growing number of complaints

regarding his behavior.       These included claims that he had created a hostile work

environment for municipal clerical workers, derided and berated people who appeared

before the board, and aggravated other board members. The City Planner eventually

questioned whether the plaintiff’s conduct met the standards of the board’s code of ethics.




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04-1510
Kulak v. City of Birmingham

       In November 2003, four new city commissioners were elected, and on November

24, the city commission voted to schedule a hearing on the plaintiff’s removal from the

board under a city ordinance that provided for such action. The commission sent copies

of all complaints regarding the plaintiff to him and requested his response by January 7,

2004. The hearing was set for January 12. On January 5, the commission amended the

board-member removal ordinance. According to the defendants, “[c]oncerns had been

raised about the definition of ‘cause,’ the lack of a definition and the lack of a process of

how any public hearing would be conducted by the City Commission.” The plaintiff argues,

however, that the amendment “inserted an illusory definition of ‘cause,’ which effectively

eliminated the cause requirement needed to remove . . . members” and was passed “for

the express purpose of removing [the plaintiff].”


       After passage of the amendment, the plaintiff’s hearing was rescheduled to January

26, 2004. He was advised of his choice to conduct it in private or public, and he elected

the latter. The plaintiff submitted a one-page response to the complaints that had been

forwarded to him, denying any wrongdoing or failure to perform his duties as a board

member. At the hearing, the plaintiff’s attorney challenged the amendment as well as the

complaints regarding the plaintiff. The commission voted 5-2 to remove him.


       The plaintiff filed suit two days later, on January 28, 2004, naming as defendants the

City and five commission members.         He charged them with violating his Fifth and

Fourteenth amendment rights under 42 U.S.C. § 1983 and his rights under the Michigan


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04-1510
Kulak v. City of Birmingham

state constitution; requested a declaratory injunction that the amendment to the removal

ordinance violated the Michigan Home Rule Act; and requested an order prohibiting

destruction of any city commission communications pertaining to his removal, expedited

discovery, and a hearing on whether he should be restored to the board until the resolution

of the suit.


       The district court granted an ex parte restraining order and scheduled a hearing to

determine whether to continue it. On February 11 the court continued the ex parte order,

denied a temporary restraining order, and issued an order to both sides to brief the

question of “whether Plaintiff’s allegations implicate a constitutionally protected liberty or

property interest. The district court later issued an opinion and order that dismissed with

prejudice all of the plaintiff’s federal claims and requests for declaratory and injunctive relief

and dismissed without prejudice the state law claims.


       The court determined, based on Michigan Supreme Court case law that the plaintiff

did not have a property interest in his position on the planning board that was subject to

due process protections. Though the plaintiff had not asserted in his complaint that he had

been deprived of a liberty interest, he did make this argument in his response to the court’s

order to show cause. The court rejected this claim based on its determination that the

plaintiff did not allege any of the five elements necessary to show the deprivation of a liberty

interest or the denial of a name-clearing hearing as outlined by this Court in Quinn v.




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04-1510
Kulak v. City of Birmingham

Shirey, 293 F.3d 315 (6th Cir. 2002). Having dismissed the plaintiff’s federal claims, the

court declined to exercise supplemental jurisdiction over the state law claims.


                                         DISCUSSION


       The plaintiff claims that the district court erred in finding that the board position did

not confer a property interest. But the district court based its finding on uncontroverted

case law from the Michigan Supreme Court. In Attorney General ex rel Rich v. Jochim, 58

N.W. 611 (Mich. 1894), the court considered a challenge brought by three Michigan state

officers to their removal by the governor. The court upheld the removal and ruled that “[a]

public office cannot be called ‘property’ within the meaning of . . . constitutional [due

process] provisions.” 58 N.W. at 613. This case was cited by the Supreme Court in Taylor

v. Beckham, 178 U.S. 548 (1900), when it announced “public offices are mere agencies or

trusts, and not property as such. . . . In short, generally speaking, the nature of the relation

of a public officer to the public is inconsistent with either a property or a contract right.” 178

U.S. at 577, n.4. The Michigan Supreme Court has affirmed its holding in Jochim in

subsequent decisions. See Robbins v. Wayne County Bd. of Auditors, 99 N.W.2d 591, 593

(Mich. 1959) (“the incumbent of a public office has no vested property interest therein”);

Jeffries v. Election Comm’n. of Wayne County, 239 N.W. 546, 548 (Mich. 1940).


       According to the plaintiff, Michigan law grants him the right not to be removed

without cause. The Michigan Home Rule Act, M.C.L.A. 117.1 et seq, provides, in relevant

part, “[t]he term of a public official shall not be shortened . . . beyond the period for which

                                              -5-
04-1510
Kulak v. City of Birmingham

he is elected or appointed, unless he or she resigns or is removed for cause, if the office

is held for a fixed term.” M.C.L.A. § 117.5(d). However, the opinion in Rich v. Jochim

states clearly that “cases [to the effect] that removals from office cannot, in some instances,

be made except upon cause shown, upon notice, specific charges, and after a hearing in

its nature judicial . . . simply hold that removals are limited by the power of the people or

legislature, through the constitution or statute, not that a vested property right is involved

in the holding of office. . . .” 58 N.W. at 614 (emphasis added). Furthermore, the city

commission conducted a hearing during which at least 15 complaints regarding the

plaintiff’s conduct were introduced, supporting a finding of cause to terminate.


       The plaintiff next claims that the district court erred in determining that he did not

have a liberty interest betrays a misreading of the law as well as the court’s opinion. We

ruled in Quinn that a stigmatizing statement must satisfy five criteria to give rise to a

deprivation of a liberty interest:    being made in conjunction with termination from

employment; addressing more than merely improper or inadequate performance,

incompetence, neglect of duty or malfeasance; publication that is voluntary; and falsity.

293 F.3d at 320. If all of these elements exist, a person is entitled to a name-clearing

hearing. “It is the denial of the name-clearing hearing that causes the deprivation of the

liberty interest without due process.” Id.




                                             -6-
04-1510
Kulak v. City of Birmingham

       As the district court observed, the plaintiff neither alleged that he had a liberty

interest nor requested a name-clearing hearing. Therefore, the district court properly

dismissed the claim.


                                     CONCLUSION


       For the reasons set out above, we AFFIRM the district court’s judgment.




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