                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 05a0310n.06
                              Filed: April 22, 2005

                                              No. 04-1748

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


JOHN W. WATTS, ANDREW J. MARKS,                       )
and KEVIN CRONIN,                                     )
                                                      )
         Plaintiffs-Appellees,                        )
                                                      )
v.                                                    )    ON APPEAL FROM THE UNITED
                                                      )    STATES DISTRICT COURT FOR THE
MICHAEL DAY, individually and in his                  )    WESTERN DISTRICT OF MICHIGAN
official capacity as Court Administrator of           )
the Allegan County Circuit Court,                     )
                                                      )
         Defendant-Appellant.                         )



         Before: DAUGHTREY and CLAY, Circuit Judges, and SCHWARZER,* District
Judge.


         PER CURIAM. Following a dispute over the award of a contract to attorneys to

represent litigants in the family division of the Allegan County (Michigan) Circuit Court, the

plaintiffs filed a § 1983 action against court administrator Michael Day and other county

officials, claiming that the plaintiff attorneys had been cut out of negotiations because of

their political speech and participation, in violation of their First Amendment rights. The

district court granted Day’s motion for summary judgment in part, dismissing claims against

him in his official capacity, as the court had also done with regard to the remaining



         *
          The Hon. William W Schwarzer, United States District Judge for the Northern District of California,
sitting by designation.
No. 04-1748


defendants. But, after finding that Day had not “demonstrated beyond factual dispute that

he is protected by qualified immunity from Plaintiffs’ claims against him in his individual

capacity,” the district court also denied in part the defendant’s motion for summary

judgment. On appeal, we affirm the order granting partial summary judgment as to the

claims against Day in his official capacity. However, because we agree with the district

court that material disputes of fact remain concerning the retaliation claim against Day in

his individual capacity, we conclude that we lack jurisdiction to review the remainder of the

appeal, under the Supreme Court’s ruling in Johnson v. Jones, 515 U.S. 304, 307 (1995).


                  I. FACTUAL AND PROCEDURAL BACKGROUND


       During calendar year 2000, the Allegan County Circuit Court’s Family Division

contracted with six attorneys or law firms “to represent indigent respondents and/or parents

in delinquency and neglect proceedings.” Under the terms of that contract, the court paid

the attorneys $175,000 over the course of the year for the representation. As 2000 drew

to a close, the parties to the contract began negotiations on its renewal with court

administrator Michael Day. Rather than negotiating individually, however, the firms agreed

to have Peter Antkoviak serve as their spokesperson and, as they had in the past, divide

the court appointments between the “Wolf Group,” consisting of the Wolf, Burnett, and

Antkoviak firms, and the “Watts Group,” consisting of the firms headed by John Watts,

Andrew Marks, and Kevin Cronin.




                                            -2-
No. 04-1748


       By letter of November 1, 2000, Day proposed to Antkoviak that the parties sign a

2001 contract with the same terms as were included in the 2000 agreement. The attorneys

responded on December 15 with a counteroffer that included a cost-of-living increase

raising the $175,000 compensation amount to $201,000 for 2001 and $221,000 for 2002.

Antkoviak also notified Day by letter dated December 21 that “there is not consensus

among the groups that [Day’s offer] is an acceptable offer and, therefore, the offer is

rejected by the two groups.” On December 26, Day sent a hand-delivered letter to

Antkoviak, this time indicating that the court’s final offer in the matter would allow for only

a three percent increase in the applicable compensation, to $180,250, for calendar year

2001. Day further stated that “[a]s your letter indicates that there is a lack of consensus

among the groups, I presume that some members are willing to enter into a contract for the

above stated figure under the same conditions as the current contract.” Day thus agreed

“to contract with those members of the group willing to do so, assuming the number of

attorneys is sufficient to provide adequate representation while minimizing conflicts.” The

next day, December 27, Day again wrote to Antkoviak, referring to an intervening

conversation in which the two of them had agreed that the Wolf Group would accept all the

appointments during 2001 in exchange for $180,250 – in rough numbers, approximately

double what they had made the previous year, after splitting the appointments with the

Watts Group.


       In his letter of December 27, apparently in reference to their intervening

conversation, Day also noted: “You informed me that you discussed this matter with the

                                             -3-
No. 04-1748


‘Watts Group’ and advised them of your intent to enter into this agreement.” However,

John Watts, speaking for that group, wrote Day on the following day, December 28,

expressing surprise that the court administrator was negotiating with a sub-group of the

original attorneys’ confederation, indicating that they had not been notified of the decision

to accept bids from less than the entire group of six attorneys, and submitting a bid for the

work in the amount of $170,250, a full $10,000 less than the bid from the Wolf Group. The

next correspondence, dated January 10, 2001, was a letter from Day to Watts, informing

him that the contract had been awarded to the other group of attorneys. The letter also

recited: “While we appreciate your offer, it comes subsequent to said agreement.” That

statement would be true, of course, only if the agreement had been reached overnight on

December 26.


              Subsequently, Watts, Marks, and Cronin filed suit against numerous

defendants, challenging the award of the contract for legal representation to the Wolf

Group. Their principal claim, and the one that is at issue on appeal, alleged that the refusal

of Circuit Judges Harry Beach and George Corsiglia, Probate Judge Michael Buck, court

administrator Michael Day, and the County of Allegan to consider their bid for the 2001

contract was the result of retaliation for the exercise of First Amendment rights. According

to the plaintiffs, the defendants refused to negotiate with Watts, Marks, and Cronin because

plaintiff Cronin ran an unsuccessful November 2000 campaign against Buck for the probate

court opening, within weeks of the decision to award the contract to the Wolf Group, whose

members apparently had supported Buck for election to the seat. Moreover, during the

                                            -4-
No. 04-1748


campaign, candidate Cronin and the other plaintiffs allegedly were associated with

unflattering comments about the operation of the courts.


       All defendants filed timely motions for summary judgment and the district court

undertook an analysis of the positions of all parties to the dispute. In the end, the district

judge dismissed both the federal and the state claims filed against defendants Beach,

Corsiglia, Buck, and the County of Allegan. He also denied the summary judgment motions

of the Antkoviak defendants and defendant Heidi Wolf, finding that the plaintiffs raised at

least a genuine issue of material fact in their claims against those defendants on state law

claims of malpractice, breach of fiduciary duty, tortious interference, fraud, and unjust

enrichment.    Finally, although dismissing with prejudice all claims brought against

defendant Day in his official capacity, the district court denied summary judgment to Day

in his individual capacity on the plaintiffs’ retaliation cause of action. Only defendant Day

now appeals any portion of the district court’s order.


                                      II. DISCUSSION


       Day insists that the district court erred in denying his motion for summary judgment

on the claim of retaliation made against him in his individual capacity. According to Day,

established principles of absolute judicial immunity or qualified immunity insulate him from

liability in this action. Ordinarily, a district court decision denying summary judgment, being

an interlocutory order, is not immediately appealable. See McMullen v. Meijer, Inc., 355

F.3d 485, 489 (6th Cir. 2004). The decision to deny summary judgment on the basis of

                                             -5-
No. 04-1748


qualified or absolute immunity is, however, immediately appealable as a final judgment

under the collateral order doctrine. See Estate of Dietrich v. Burrows, 167 F.3d 1007, 1010

(6th Cir. 1999) (citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). We review a decision

to deny immunity to a defendant de novo. See id.


         Summary judgment should be denied to defendants in cases such as this unless

“the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

A genuine issue of material fact will be found to exist when, viewing the evidence in the

light most favorable to the non-moving party, “a reasonable jury could return a verdict for

[that] party.” Preferred Props., Inc. v. Indian River Estates, Inc., 276 F.3d 790, 801 (6th Cir.

2002).


                                 A. The Retaliation Claim


         Prior to resolving the question of whether Day is entitled to judicial or qualified

immunity for his actions in this matter, we “must first examine whether the [plaintiffs] have

[even] properly alleged a cause of action [for retaliation].” Bloch v. Ribar, 156 F.3d 673,

678 (6th Cir. 1998). The plaintiffs’ retaliation claim is premised upon the provisions of 42

U.S.C. § 1983, which forbids a person acting “under color of any statute, ordinance,

regulation, custom, or usage of any State” from denying a United States citizen “any rights,

privileges, or immunities secured by the Constitution and laws.” Consequently, in order to

                                             -6-
No. 04-1748


establish a § 1983 violation, a plaintiff must demonstrate not only that he or she was

deprived of a constitutional or federal statutory right, but also that the deprivation occurred

under color of state law. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970).


       In this matter, Day does not dispute that his actions were undertaken under color of

state law. In fact, he argues strenuously that he should be entitled to absolute immunity

for those actions because he was, in effect, acting as a state judge when negotiating the

service provision contract with the various attorney groups. Additionally, there can be little

dispute that the plaintiffs enjoyed a First Amendment right to run for political office or to

support the candidate of their choice without being discriminated against in their jobs as a

result. See Glasson v. City of Louisville, 518 F.2d 899, 904 (6th Cir. 1975) (“The right of

an American citizen to criticize public officials and policies and to advocate peacefully ideas

for change is ‘the central meaning of the First Amendment.’” (quoting New York Times v.

Sullivan, 376 U.S. 254, 273 (1964))).


       As we explained in Bloch:


       In order to prove a claim for retaliation, a plaintiff must establish the following
       elements: (1) that the plaintiff was engaged in a constitutionally protected
       activity; (2) that the defendant’s adverse action caused the plaintiff to suffer
       an injury that would likely chill a person of ordinary firmness from continuing
       to engage in that activity; and (3) that the adverse action was motivated at
       least in part as a response to the exercise of the plaintiff’s constitutional
       rights.




                                              -7-
No. 04-1748


Id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)). Once a

plaintiff can satisfy this burden, a defendant must establish, by a preponderance of the

evidence, “that it would have taken the same action even in the absence of the protected

conduct.” Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir. 2000) (quoting Jackson v.

Leighton, 168 F.3d 903, 909 (6th Cir. 1999) (quotation omitted)).


         Here, the plaintiffs have at least alleged facts that could lead to a finding of

retaliation. Without question, Cronin was within his First Amendment rights to run for

elective office against a candidate supported by sitting judges and, possibly, their staff.

Similarly, plaintiffs Watts and Marks were constitutionally entitled to support Cronin, their

candidate of choice, and engage in speech indicating the level of that support. See

Glasson, 518 F.2d at 904. Furthermore, if, as alleged by the plaintiffs, Cronin, Watts, and

Marks lost the opportunity to represent indigent clients solely because they challenged the

existing power structure within the Family Division of the Allegan County Circuit Court, such

retribution would most definitely give pause to “a person of ordinary firmness” before

engaging in similar speech. Finally, viewed in the light most favorable to the plaintiffs, the

evidence adduced would support a conclusion that Day pursued contract discussions only

with those attorneys who endorsed candidates favorable to the sitting members of the

court.


         Although the facts presented could justify a conclusion that Day’s decision to

contract with only the Wolf Group was not politically motivated, those facts would also


                                            -8-
No. 04-1748


support a determination that defendant Day retaliated against the plaintiffs for running

against, or supporting a candidate running against, Day’s superiors. Certainly, the fact that

Day was aware that the once-unified group of attorneys that had previously contracted with

the county was now splintered into two competing factions and that Day turned down the

plaintiffs’ offer of a compensation package that would have saved the county $10,000 only

one day after negotiating with the Wolf Group, does provide some evidence that the

defendant considered factors other than the best interests of the court and the county in

reaching his decision in this matter. Thus, the plaintiffs have properly alleged a cause of

action for retaliation under § 1983.


                            B. The Absolute Immunity Claim


       Recognizing that at least a genuine issue of material fact exists in this case

regarding the motivation of Day in excluding the plaintiffs from the county contract for the

provision of legal services to litigants before the Family Division of the Allegan County

Circuit Court, the defendant next asserts he was absolutely immune from the claims made

in this suit. Specifically, Day contends that he was, in contracting for those services, acting

as a judge who cannot be held financially liable in federal court for the exercise of his

judicial duties.


       Generally, judicial officers are absolutely immune from suit for money damages

under § 1983 for their judicial decisions so as to allow them “to make controversial

decisions and act upon their convictions without fear of personal liability.” Cooper v.

                                             -9-
No. 04-1748


Parrish, 203 F.3d 937, 944 (6th Cir. 2000) (citing Stump v. Sparkman, 435 U.S. 349, 355-

56 (1978)). Such individuals will not, however, be considered immune from suit “for non-

judicial actions, i.e., actions not taken in the judge’s judicial capacity,” and “for actions,

though judicial in nature, taken in the complete absence of all jurisdiction.” Id. at 945

(citations omitted). When determining whether a grant of immunity is proper, we look to the

nature of the function at issue and not merely to the identity of the actor or the harm

caused. See Lomaz v. Hennosy, 151 F.3d 493, 497 (6th Cir. 1998). As we noted in

Cooper:


       This functional approach typically turns on two factors. First, a court must
       determine whether an act is related to those general functions that are
       normally performed by a judicial officer. Second, a court must assess
       whether the parties expected to deal with the judicial officer in the officer’s
       judicial capacity.


Cooper, 203 F.3d at 945 (citations omitted).


       Furthermore, absolute judicial immunity should be recognized only sparingly. See

Lomaz, 151 F.3d at 497. “[T]he official seeking the immunity bears the burden of showing

that his actions are entitled to such absolute protection.” Id. (citing Burns v. Reed, 500 U.S.

478, 486 (1991)).


       An examination of Day’s actions in this situation makes clear that the defendant was

not entitled to the protections afforded by the cloak of absolute judicial immunity. It is

conceivable that the negotiation of contracts with attorneys for the provision of legal


                                            - 10 -
No. 04-1748


services to the indigent could be considered “related” to the duty of a judge to appoint

counsel as needed in family court matters. Nevertheless, there is absolutely no indication

in this record that any of the affected attorneys did or could consider their dealings with Day

during the contractual negotiations to constitute an exercise by the defendant of

adjudicatory authority. At no time during those negotiations did Day pretend to be anything

other than what he was – a court administrator performing the administrative function of

selecting a list of attorneys that the judges themselves could use to appoint counsel for

those persons before the court requiring legal representation.


       In Lomaz, this court, citing Buckley v. Fitzsimmons, 509 U.S. 259, 276 (1993), stated

that “[w]here the [defendant] acts more as an administrator or investigator . . . he may claim

only qualified immunity. . . .” Because Day merely performed the administrative act of

negotiating a contract with area attorneys, and did not engage in the judicial function of

actually appointing counsel to represent persons before the court, the defendant was not

entitled to absolute judicial immunity from suit in this matter. The district court thus did not

err in denying Day that protection.


                            C. The Qualified Immunity Claim


       Defendant Day asserts that, even if he cannot claim the protections from suit

afforded by the principles of absolute immunity, he is entitled to qualified immunity from the

allegations made by the plaintiffs. It is now well-established that “government officials

performing discretionary functions generally are shielded from liability for civil damages

                                             - 11 -
No. 04-1748


insofar as their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982).


       In evaluating a claim of qualified immunity, we undertake a three-step analysis:


       First, we determine whether, based upon the applicable law, the facts viewed
       in the light most favorable to the plaintiffs show that a constitutional violation
       has occurred. Second, we consider whether the violation involved a clearly
       established constitutional right of which a reasonable person would have
       known. Third, we determine whether the plaintiff has offered sufficient
       evidence to indicate that what the official allegedly did was objectively
       unreasonable in light of the clearly established constitutional rights.


Shamaeizadeh v. Cunigan, 338 F.3d 535, 545-46 (6th Cir. 2003) (quoting Feathers v. Aey,

319 F.3d 843, 848 (6th Cir. 2003), and Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.

1999) (en banc)), cert. denied, 124 S.Ct. 2159 (2004):


       In determining whether a constitutional violation has occurred in this case, we first

examine whether the plaintiffs’ speech is protected by First and Fourteenth Amendment

guarantees. See Taylor v. Keith, 338 F.3d 639, 643 (6th Cir. 2003). Speech, like the

plaintiffs’ campaign for public office and outward manifestations of political support, will be

considered “protected” if it involves a matter of public concern, see Connick v. Myers, 461

U.S. 138, 147 (1983), and the plaintiffs’ interest in the speech outweighs any governmental

interest in suppressing or regulating the communication of ideas. See Pickering v. Bd. of

Educ., 391 U.S. 563, 573 (1968).


                                             - 12 -
No. 04-1748


       The mere articulation of this standard is sufficient to establish the protected nature

of the plaintiffs’ speech. Clearly, a decision to make oneself a candidate for an elective

judicial office is a matter of public concern. So, too, is the decision of private attorneys

serving in those courts to endorse candidates who they feel will improve the machinery for

the delivery and administration of justice. Additionally, given the complete and utter lack

of any governmental interest in suppressing such speech, a balancing of competing

interests decisively tips the scales in favor of recognition of the protected nature of the

plaintiffs’ expressions.


       The plaintiffs in this case have also offered evidence to show that defendant Day

violated their constitutional rights by making decisions calculated to retaliate against them

for their political speech. Day, however, insists that there is no evidence that protected

speech played any role in the decision as to which attorneys would be allowed to contract

to represent clients in the Family Division of the Allegan County Circuit Court, or that the

defendant himself was in any way responsible for that decision. Although it is true that Day

himself was not a party to the actual contract between the court and the attorneys

comprising the Wolf Group, he was responsible for the contract negotiations and he

rejected the lower contract bid of the Watts Group on what appears to be a manufactured

ground, i.e., that the offer came after an agreement with the Wolf Group had already been

reached. Day, therefore, played a significant role in the decision that favored one group

of attorneys that supported the candidate of Day’s superiors over another group of

attorneys who challenged the candidate supported by the sitting circuit court judges.

                                           - 13 -
No. 04-1748


       Day also argues that no constitutional violation occurred here because he offered

the same contractual terms to the attorneys in the Wolf Group as to the attorneys in the

Watts Group, all of whom rejected the initial offer. It is also true, however, that Day was

aware that two separate groups of attorneys were included in the original bargaining group

and that he then availed himself of the opportunity to exclude one such group from further

negotiations. Given the need to consummate an agreement, one might conclude that Day

harbored no malicious animus toward the Watts Group, were it not for the fact that the

attorneys who challenged Day’s superiors by running for public office had submitted their

own bid on contract services the day following talks with the Wolf Group. Furthermore, not

only did the defendant fail to take the obvious precautionary step of checking with both

groups before agreeing with either one’s offer, but he rejected out-of-hand the proposal of

the Watts Group that those attorneys would provide the requested services for a price that

was 5.5% lower than that agreed to by the sitting judges’ supporters. These facts establish

a genuine dispute as to Day’s knowledge and motivation in the contract negotiations.

Because the qualified immunity determination thus turns, not upon a question of law, but

upon the question of what facts the parties can prove, the principles of Johnson v. Jones

require us to dismiss this portion of Day’s appeal for lack of subject matter jurisdiction.


                                      CONCLUSION


       For the reasons set out above, we conclude that the district judge correctly resolved

the issues presented on motion for summary judgment. We therefore AFFIRM the district


                                           - 14 -
No. 04-1748


court’s order granting Day summary judgment on the plaintiffs’ claims against him in his

official capacity. Because the district court correctly held that there are material issues of

disputed fact regarding the claims against Day in his individual capacity, we have no

subject-matter jurisdiction to review that portion of the appeal, and it must therefore be

DISMISSED.




                                            - 15 -
