Skelton v. Camp, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-41075
Summary Calendar
_______________
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.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________
December 12, 2000
Before SMITH, BENAVIDES, and
DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Certain municipal officials appeal the denial
of their motion for summary judgment in this
action brought for alleged violations of
statutory and constitutional rights. We dismiss
the appeal for want of jurisdiction.
I.
Paul Skelton was elected mayor of Parker,
Texas, on May 4, 1996, but a year later, the
citizens of Parker presented the aldermen with
charges for cause to remove him. The
aldermen conducted a trial in closed session in

-- 1 of 5 --

2
accordance with TEX. LOC. GOV’T CODE ANN.
§ 21.001 and removed Skelton, who then sued
the aldermen in their official capacities for re-
instatement and damages to his reputation. He
asserted causes of action for violations of his
free speech and due process rights under the
United States and Texas constitutions; the
Texas Open Meetings Act, TEX. GOV’T CODE
ANN. §§ 551.001-.146; and TEX. LOC. GOV’T
CODE ANN. § 21.002. The aldermen removed
the case to federal court on the ground that
Skelton’s constitutional claims presented a
federal question. See 28 U.S.C. § 1331.
Skelton then amended his suit to include a
claim under 42 U.S.C. § 1983 for damages to
his reputation.
The aldermen amended their answer to as-
sert judicial immunity, relying on a Texas case
decided during the course of this suit that held
that aldermen of a general-law municipality are
officers of the state acting in the role of judges
when conducting a removal trial under §
21.002. See State ex rel. White v. Bradley,
956 S.W.2d 725 (Tex. App.SSFort Worth
1997), rev’d on other grounds by Bradley v.
State ex rel. White, 990 S.W.2d 245 (Tex.
1999). They then moved to dismiss for failure
to state a claim on which relief could be grant-
ed and asserted judicial immunity based on the
analysis in White. See FED. R. CIV. P.
12(b)(6). The district court denied the motion
to dismiss without explicitly addressing the
claim of judicial immunity, relying instead on
the need for a reviewing court to examine the
entire record of the removal trial. See Riggins
v. City of Waco, 93 S.W. 426 (1906).
The district court granted summary
judgment for Skelton with regard to his claim
that the removal was substantively and
procedurally defective under § 21.002, but it
found that the remedy of reinstatement was no
longer available, because Skelton’s term had
ended. The court granted summary judgment
to the aldermen on Skelton’s First Amendment
retaliation claims but denied summary
judgment as to the due process claim, because
there were fact issues to be decided by a jury.
The aldermen appeal the denial of summary
judgment on the due process claim, asserting
their entitlement to judicial immunity under the
Eleventh Amendment.1 State officials sued in
their official capacities are not persons subject
to suit under § 1983. Will v. Michigan Dep’t
of State Police, 491 U.S. 58, 71 (1989). If the
aldermen acted as state officials carrying out
state law, they enjoy immunity under the
Eleventh Amendment. Pennhurst v.
Halderman, 465 U.S. 89, 121 (1984).
Skelton moves to dismiss the appeal,
contending that this court does not have jur-
isdiction, or in the alternative, that the
Eleventh Amendment may not offer an af-
firmative defense to the aldermen, because
they are not sued in their individual capacities.
Additionally, Skelton urges us to find that the
Eleventh Amendment does not apply here, be-
cause (1) the city made the decision to remove
Skelton; or, (2) in the alternative, that the “re-
moval court” is itself a local political
subdivision.
II.
We have jurisdiction to review the denial of
summary judgment under the collateral order
doctrine if the aldermen acted as state officials,
but we have no jurisdiction if they acted as
1 “The judicial power of the United States shall
not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the
United States by Citizens of another State . . . .”
U.S. CONST. amend. 11.

-- 2 of 5 --

3
municipal officers. A denial of summary
judgment is not a final order within the
meaning of 28 U.S.C. § 1291. Lemoine v.
New Horizons Ranch & Ctr., Inc., 174 F.3d
629, 633 (5th Cir. 1999).
In Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541 (1949), however, the Court rec-
ognized an exception to this final order
requirement for certain collateral appeals. The
denial of an Eleventh Amendment immunity
claim falls within this exception. Puerto Rico
Aqueduct & Sewer Auth. v. Metcalf & Eddy,
506 U.S. 139, 144-45 (1993); Mitchell v.
Forsyth, 472 U.S. 511, 525-30 (1985).
Although the parties dispute whether the
Eleventh Amendment claim was presented to
the district court, “the Eleventh Amendment
immunity defense sufficiently partakes of the
nature of a jurisdictional bar so that it need not
be raised in the trial court.” Edelman v.
Jordan, 415 U.S. 651, 678 (1974). We have
jurisdiction over an interlocutory appeal of the
denial of summary judgment involving
absolute immunity where there are no material
facts in dispute. Quirk v. Mustang Eng’g,
Inc., 143 F.3d 973, 975 (5th Cir. 1998).
Even though the district court did not ex-
pressly address the Eleventh Amendment im-
munity claim, that claim still forms the basis
for the appeal. Asserting jurisdiction in this
case, then, supports the policy of protecting
the “entitlement not to stand trial or face the
other burdens of litigation.” Mitchell, 472
U.S. at 526. This entitlement is “effectively
lost if a case is erroneously permitted to go to
trial.” Swint v. Chambers County Comm’n,
514 U.S. 35, 42 (1995). Thus, the aldermen’s
claim that they are entitled to absolute official
immunity falls within the ambit of the general
rule allowing interlocutory appeals based on
absolute official immunity under the collateral
order doctrine.
By contrast, if the aldermen acted not on
behalf of the state, but rather as municipal of-
ficers when they removed Skelton from office,
we do not have jurisdiction. Although a state
or its officers sued in their official capacities
may raise immunity defenses on interlocutory
appeal, a municipal government may not. Nic-
oletti v. City of Waco, 947 F.2d 190, 191-92
(5th Cir. 1991) (citing McKee v. City of Rock-
well, 877 F.2d 409, 412 (5th Cir. 1989)). Be-
cause a suit against the aldermen in their of-
ficial capacities is the functional equivalent of
a suit against the entity they represent, see
Kentucky v. Graham, 473 U.S. 159, 165-66
(1985), if the aldermen represented the city
rather than the state during the removal
proceedings, we have no jurisdiction. See
Jacobs v. West Feliciana Sheriff’s Dep’t, 228
F.3d 388, ___, 2000 U.S. App. LEXIS 23177,
at *9-*10 (5th Cir. Sept. 13, 2000).
III.
The question, then, is whether, in the
removal proceeding, the aldermen represented
the State of Texas or the municipality.2 We
conclude that they represented the
municipality.
The determination of whether an official
2 The alderman also argue that they are entitled
to “judicial immunity,” a state law doctrine
functionally identical to the absolute immunity
accorded judges acting in their judicial capacity in
§ 1983 claims. See Beck v. Texas State Bd. of
Dental Exam’rs, 204 F.3d 629 (5th Cir. 2000),
cert. denied, 69 U.S.L.W. 3022 (U.S. Oct. 2,
2000) (No. 00-3). Because this doctrine applies
only to officers sued in their individual capacity, it
has no bearing on the outcome.

-- 3 of 5 --

4
acts on behalf of the city or the state is a mat-
ter of state law. McMillian v. Monroe
County, 520 U.S. 781, 786 (1997). The
aldermen contend that because state law
governed the removal proceedings, they acted
as state officials rather than municipal officials.
At the time of Skelton’s removal, § 21.002
governed a mayor’s removal from office in a
general-law municipality3 and required the
aldermen to sit as a “court” over the removal
“trial.” See § 21.002(f), (g), (h). Additionally,
aldermen assume the role of judges in a
removal trial. Bradley, 990 S.W.2d at 249
(Tex. 1999).
The mere fact that the aldermen acted in
accordance with state law, however, does not
resolve the question dispositively. Because
Parker is a “general law” city, it derives its
powers from state statutes rather than from a
city charter. See 22 DAVID B. BROOKS,
TEXAS PRACTICE: MUNICIPAL LAW AND
PRACTICE §§ 1.14, 3.14 (2d ed. 1999).
Moreover, the assumption of a judicial role
does not transform the aldermen into state
actors. Indeed, aldermen participating in a
removal proceeding “are not members of the
judiciary, they assumed judicial roles.”
Bradley, 990 S.W.2d at 249.
In Riggins v. Richards, 77 S.W. 946 (Tex.
1904), an analogous case involving a city gov-
erned by a charter, the court reviewed a
removal trial proceeding in which the city
council had removed the mayor. The court
found that the removal proceeding must be
handled as an adjudicative proceeding. Id. at
947 (interpreting the city’s charter mandating
“due notice and opportunity to be heard” as
requiring a trial proceeding). The city charter
did not indicate that the removal process was
a “court,” nor did it suggest that the city
council members in the removal process acted
as judges.
Here, the aldermen made a similar removal
decision. No law or policy justifies treating
removal decisions of “general law”
municipalities differently from those of other
municipalities when both entities make
functionally identical determinations.
IV.
The aldermen contend that the removal
procedure represents an independent entity,
the “removal court.” Whether they acted as
municipal policymakers in the removal trial has
no bearing on the question of immunity,
however. When individuals are sued in their
official capacities under § 1983, the
determination of which entity a defendant
serves as policy maker presents a liability
issue, not an immunity issue. Hudson v. City
of New Orleans, 174 F.3d 677, 681 n.1 (5th
Cir.), cert. denied, 120 S. Ct. 498 (1999);
Swint, 514 U.S. at 43.
Thus, any transformation of the aldermen
into state court judges in the removal
proceeding still does not afford them Eleventh
Amendment immunity. Rather, it would mean
that the wrong entity had been sued, because
the actions of the aldermen cannot be
attributed to the municipality. Moreover, be-
cause this type of liability determination does
not present an immunity issue, it does not fall
within the collateral order doctrine, and we
have no jurisdiction to address it.
The aldermen bear the burden of proof in
3 Since the time of Skelton’s removal, Texas
has replaced § 21.002 with §§ 21.021-.032, which
places the power of removal in the hands of a state
district judge. See TEX. LOC. GOV’T CODE ANN.
§§ 21.021-.032.

-- 4 of 5 --

5
demonstrating that the “removal court” is an
arm of the state entitled to Eleventh
Amendment immunity. See ISTI TV Prods.,
Inc. v. Agricultural Ass’ns, 3 F.3d 1289, 1291
(9th Cir. 1993); Christy v. Pennsylvania
Turnpike Comm’n, 54 F.3d 1140, 1144 (3d
Cir.), cert. denied, 516 U.S. 932 (1995). We
have adopted a six-factor test for evaluating
whether a governmental entity is an arm of the
state entitled to Eleventh Amendment
immunity. Clark v. Tarrant County, 798 F.2d
736, 744-45 (5th Cir. 1986).
These factors include (1) whether the state
law considers the entity as an arm of the state;
(2) the source of the entity’s funding; (3) the
entity’s degree of local autonomy; (4) whether
the entity is concerned primarily with local or
statewide problems; (5) whether it has the
authority to sue and be sued in its own name;
and (6) whether it has the right to hold and use
property. Anderson v. Red Riv. Waterway
Comm’n, No. 99-31334, slip op. at __ (5th
Cir. Nov. 8, 2000). These factors aid the
court in identifying whether a suit is really
against the state itself. Laje v. R.E. Thomason
Gen. Hosp., 665 F.2d 724, 727 (5th Cir.
1982).
Texas statutes and caselaw do not suggest
that a “removal court” would be considered an
arm of the state. It is not identified as part of
the Texas court system in the Texas
Government Code. It is not supervised by the
Texas Judicial Council. See TEX. GOV’T CODE
ANN., Subtitle F. It has jurisdiction only with-
in the town of Parker. See TEX. LOC. GOV’T
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
are not the same as for other courts in the state
system. Therefore, the “removal court” is not
part of the town itself, but is part of the local
governing structure.
The second factor is usually accorded the
most weight. See Delahoussaye v. City of
New Iberia, 937 F.2d 144, 147-48 (5th Cir.
1991). The parties agree that the State of
Texas gives the “removal court” no funding.
The “court” used entirely city facilities and
staff. The aldermen do not suggest that the
state would not pay any judgment rendered
against the “removal court.”
The remaining factors also counsel in favor
of finding that any “removal court” that may
exist is a purely local entity. The aldermen
have complete local autonomy with regard to
the removal proceeding, which addresses pure-
ly local problems. The entity cannot sue and
be sued, nor can it hold and use property.
Thus, the aldermen have not met their burden
of proof in demonstrating that they are entitled
to immunity because they acted on behalf of a
state “removal court.”
Therefore, the aldermen have demonstrated
neither that they acted as state officials nor
that the “removal court” is an arm of the state.
Because the aldermen are municipal officers
sued in their official capacity, we do not have
jurisdiction to review the denial of summary
judgment.
The appeal is DISMISSED for want of
jurisdiction.

-- 5 of 5 --