JOHN W. WATTS, ANDREW J. MARKS, and KEVIN CRONIN v. Michael Day, individually

*The Hon. William W Schwarzer, United States District Judge for the Northern District of California,
sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.
MICHAEL DAY, individually and in his
official capacity as Court Administrator of
the Allegan County Circuit Court,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN
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

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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.

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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

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‘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

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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

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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

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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.

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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

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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.

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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

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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

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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).

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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.

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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

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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.

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