In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3943

Johnnie Mitchell,

Plaintiff-Appellee,

v.

Lonnie Randolph,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 2:98cv0484 AS--Allen Sharp, Judge.

Argued May 8, 2000--Decided June 15, 2000



  Before Posner, Chief Judge, and Bauer, and
Diane P. Wood, Circuit Judges.

  Diane P. Wood, Circuit Judge. Johnnie
Mitchell had a successful, and so far as
the record shows, uneventful, career with
the City of East Chicago, Indiana, for 25
years. For much of that time, she had
been a political supporter of Mayor
Robert A. Pastrick. From 1973 to 1998,
she worked as court coordinator for a
judge of the East Chicago City Court,
Judge Del Marie Williams. Judge Williams
died in 1998, however, and on August 3,
1998, her successor was appointed,
defendant Judge Lonnie Randolph. Judge
Randolph, a political foe of Mayor
Pastrick, demoted Mitchell to part-time
status shortly after he was sworn in. He
then restructured her former job, renamed
it "community coordinator," and hired
Charlotte Mahone for the new position.

  Mitchell did not last long under the new
arrangement. She quit in the third week
of August 1998, claiming constructive
discharge, and filed suit under 42 U.S.C.
sec. 1983 against Judge Randolph on
August 27, 1998. She claimed that Judge
Randolph had retaliated against her in
violation of her First Amendment right to
political speech, by demoting and
constructively discharging her. She
included a 42 U.S.C. sec. 1985 claim
against Judge Randolph and Bobby
Cantrell, East Chicago Republican
Chairman, who she asserted had phoned her
to tell her of her demotion. Mitchell
alleged that the two had conspired to
deprive her of her constitutional rights.
Bobby Cantrell responded with a 12(b)(6)
motion to dismiss the charge against him.
Judge Randolph filed a motion for summary
judgment based on qualified immunity on
August 31, 1999. The parties appear to
have believed that Mitchell had 30 days
to respond to Judge Randolph’s motion,
perhaps because they assumed that the
time period for responding to a summary
judgment motion in the federal court
matched the 30-day period afforded by
Rule 56 of the Indiana Rules of Trial
Procedure. (If so, they were
unequivocally wrong; Local Rule 56.1 of
the U.S. District Court for the Northern
District of Indiana provides a 15-day
period for a party to respond to a motion
for summary judgment.) The district court
itself did not establish a deadline for
her response.

  Confusion erupted on September 24, 1999,
when the district court issued an order
which dismissed the conspiracy claim and
terminated Bobby Cantrell as a defendant,
and, in an obscure fashion, appeared to
deny Judge Randolph’s summary judgment
motion. The order also dismissed a
discrimination claim which no one,
including Mitchell, had ever made or
mentioned. Mitchell and Judge
Randolphbecame somewhat bewildered.
Mitchell, who thought that she still had
time to respond to the summary judgment
motion, assumed the motion had not been
definitively ruled upon. On September 30,
1999, she filed a motion to extend her
time to respond until October 29, 1999.
The district court, apparently agreeing
with her assumption, granted that motion
on October 4, 1999. Judge Randolph, also
unsure of the status of his summary
judgment motion, filed a motion for
clarification of the September 24 order
on October 15, 1999. The district court
responded on October 18, 1999, by
ordering a pretrial conference on the
issue, to be held October 29, 1999. At
that conference, the district court
explained that its September 24, 1999,
order had indeed denied Judge Randolph’s
summary judgment motion. (The court never
mentioned the fact that Mitchell had not
filed a response to Judge Randolph’s
motion within the 15-day period given by
Local Rule 56.1, and so it is impossible,
especially in light of the court’s
intervening orders, to say whether that
factor affected its decision to rule
without hearing from her.) The end result
was a denial of the summary judgment
motion based on a record devoid of
anyresponse to the motion by Mitchell.

  Judge Randolph appealed the September 24
denial under Mitchell v. Forsyth, 

, 526 (1985). While the record is
far more confused than we would prefer,
we conclude that the district court did
not err in refusing to resolve the case
on qualified immunity grounds, and we
therefore affirm.

I

  The standards under which we assess a
claim of qualified immunity are by now
well established. See generally Siegert
v. Gilley, 

(1991); Harlow v.
Fitzgerald, 

(1982). First,
after a state defendant has properly
invoked this defense, the plaintiff must
show that her claim states a violation of
her constitutional or statutory rights;
and second, the plaintiff must show that
the applicable legal standards were
clearly established at the time the
defendants acted. See Harrell v. Cook,

, 431 (7th Cir. 1999); see
also Denius v. Dunlap, No. 99-1402, 

, at *3 (7th Cir. April 11,
2000); Coady v. Steil, 

, 731
(7th Cir. 1999). The procedural posture
of the case matters as well. If
resolution of a claim of qualified
immunity depends on disputed issues of
material fact, not only must it await a
full trial, but it is also not a proper
subject for an interlocutory appeal. See
Johnson v. Jones, 

, 307
(1995); Clash v. Beatty, 

,
1048-49 (7th Cir. 1996).

  Although the district court nominally
resolved the present case upon the
defendant judge’s motion for summary
judgment, a closer examination of the
proceedings indicates that this is not
quite what happened. Instead, the court
pretermitted the normal process by ruling
on the defendant’s summary judgment
motion 35 days before the plaintiff had
reason to believe her response was due.
(We put it this way because plaintiff
thought she had until October 29 to
respond, as that was what the October 4
order said, even though the judge later
decided that he had already denied Judge
Randolph’s motion.) The court’s early
ruling naturally affected the record that
was created for purposes of appellate
review, because it effectively prevented
the plaintiff from introducing evidence
that would have supported the judge’s
decision that disputed issues of fact
existed. The judge’s ruling was in favor
of the plaintiff’s position, which meant
that plaintiff had no occasion to
supplement the record or to seek
reconsideration after the decision was
made.

  Under these somewhat unusual
circumstances, we think the best approach
to take is to review the decision denying
qualified immunity as if it had been a
decision on the pleadings under Fed. R.
Civ. P. 12(c). This has several
implications. First, it means that we
take the facts in the light most
favorable to the opponent of the summary
judgment motion, and we draw all
reasonable inferences from the pleadings
in her favor. Second, it means that our
decision in this case is based only on
the abbreviated record created by the
pleadings.

  With these precautionary remarks in
mind, we turn to Judge Randolph’s appeal.
It is clear that Mitchell has stated a
claim for a deprivation of her
constitutional rights. She argues that
her demotion and constructive discharge
violated her First Amendment right to
political speech. To support this claim,
she relies on the Supreme Court’s
political patronage cases, including
Elrod v. Burns, 

(1976);
Branti v. Finkel, 

(1980);
and Rutan v. Republican Party of
Illinois, 

(1990). See also
O’Hare Truck Serv., Inc. v. City of
Northlake, 

, 718-19 (1996).
According to her complaint, she had a
low-level, clerical position in the city
court office. She had also been a long-
time supporter of Judge Randolph’s
political foe, East Chicago Mayor
Pastrick (indeed, Judge Randolph had
twice run for Mayor against Mayor
Pastrick, both times unsuccessfully).
Upon his arrival at the court, Judge
Randolph retaliated against her for her
political views, first through the
demotion and then through the
constructive discharge. Shortly after he
demoted Mitchell, Judge Randolph
attempted to sanitize his actions by
creating a new position that included
both Mitchell’s old duties and some new
responsibilities that entailed more
contact with the general public.

  These allegations state a claim under
the relevant line of First Amendment
cases. This is not to say that questions
do not remain for later resolution. One
such question is whether Mitchell’s
former job was properly characterized as
clerical in nature, or if it was the kind
of policy-making or confidential position
for which party affiliation is an
acceptable requirement. See 

. Another question is whether
Judge Randolph’s decision to create the
new position of community coordinator
represented a bona fide desire to re-
deploy his office staff, or if it was
instead part of a sham designed to
facilitate a politically motivated attack
against Mitchell. Authority given to the
new community coordinator in excess of
that ascribed to Mitchell’s position by
state regulation or common practice might
evidence a sham. See, e.g., Meeks v.
Grimes, 

, 420 n.1 (7th Cir.
1985) (asking whether the tasks delegated
to a new position were within the
inherent power of that position). A third
question is whether the new position of
community coordinator itself, assuming
that it was bona fide, qualified for the
policy-making or confidentiality
exception to Elrod, Branti, and Rutan. We
conclude only that, under Mitchell’s
alleged facts, Judge Randolph demoted and
constructively fired her not because he
wanted to reorganize his office, but
because he did not want his political
foe’s supporter answering the telephone,
filing warrants, and coordinating pre-
trial services in his office. A
reasonable trier of fact could find that
these tasks are sufficiently clerical, if
they indeed represent the sum total of
Mitchell’s activities, that she was
protected against politically motivated
retaliation.

  The present record does not reveal
exactly what positions a city court judge
is entitled to create, or what
responsibilities he or she may delegate
to a person on the court’s staff. Like
most states in the United States, Indiana
has embraced the principle of separation
of powers in its constitution. See Ind.
Const. art. III, sec. 1. It has vested the
judicial power of the state in its
Supreme Court, Court of Appeals, Circuit
Courts, and "such other courts as the
General Assembly may establish." 

sec. 1. Included among those
"other courts" are the city courts, such
as the one to which Judge Randolph was
appointed. Ind. Code sec. 33-10.1-1-3.
Judges of those courts are considered to
be "judicial officers" of the State of
Indiana for all purposes. See, e.g.,
Indiana Rules for Admission to the Bar
and the Discipline of Attorneys, Rule 25.
Article II of those rules defines the
term "judicial officer" to include
everyone from justices of the Indiana
Supreme Court itself and judges of the
court of appeals, to tax court judges and
judges of any "Circuit, Superior, County,
City or Town Court of the State."
(Emphasis added.) City court judges are
normally elected to office by the voters
of the city or town, pursuant to Ind.
Code sec. 3-10-6 or sec. 3-10-7. See Ind.
Stat. sec. 33-10.1-3-1.1(a). Vacancies
that occur between elections are filled
by the governor. Ind. Stat. sec.
3-13-8-2. Last, city court judges are
subject to the Code of Judicial Conduct
that Indiana has enacted for all of its
judicial officers. Indiana Rules for
Admission to the Bar and the Discipline
of Attorneys, Rule 25.

  We cannot say on the basis of the
present record whether or not the duties
Judge Randolph has entrusted to his new
community coordinator all fall within the
recognized scope of judicial powers or
ancillary services, consistently with
Indiana law. Perhaps they do. The
coordinator’s duties are wide-ranging in
scope, including expanded services to
meet the needs of East Chicago’s
residents for drug and alcohol treatment
programs, referral services for community
work programs, a mock court program for
local schools, a junior judge program for
the high schools, and a mental health
referral service. Judge Randolph frankly
states in his brief that these programs,
as administered by Mahone (Mitchell’s
replacement), "could have been a
significant factor in his successful
reelection in November 1999." If this
means only that the voters were happy
with an efficient, well run office, there
is nothing to criticize. If, however, it
means that the judge got Mitchell out of
the way so that he could use his judicial
office for more executive or politically
motivated tasks, the inference that he
retaliated against her for her views
would be stronger.

  We add only a word about the other part
of the test for qualified immunity:
whether the right in question was clearly
established at the time the public
official acted. Judge Randolph’s actions
took place in August 1998, long after the
leading Supreme Court decisions in this
area were handed down, and long after
this court had made clear in a number of
cases that political retaliation against
lower level employees violated their
First Amendment rights. See, e.g., 

; 

;
Flenner v. Sheahan, 

, 465
(7th Cir. 1997). We stress again that
nothing in this decision prevents an
elected official (or here, a state judge)
from effecting a good faith
reorganization of an office. If that
turns out to have been Judge Randolph’s
motivation for his actions against
Mitchell, she will lose. If, however, he
acted for impermissible political reasons
and then shuffled things around to suit
his needs, then her First Amendment
rights were violated. If his motives were
mixed, then under this court’s en banc
decision in Rakovich v. Wade, 

(7th Cir. 1987), the correct
analysis will be the one established in
Mt. Healthy City School Dist. v. Doyle,

(1977): the plaintiff must
show that the constitutionally protected
conduct was a substantial or motivating
factor in the public employer’s decision,
and then (to escape liability) the
defendant must show that it would have
reached the same decision even in the
absence of the protected 

; Rakovich v. 

. See also Gooden v. Neal, 

, 928 (7th Cir. 1994).

  We therefore affirm the district court’s
decision to deny Judge Randolph’s motion
for summary judgment based on the
qualified immunity defense.

AFFIRMED.