William Hunt v. County of Orange

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM J. HUNT, 

Plaintiff-Appellant, No. 10-55163 v. D.C. No. COUNTY OF ORANGE; MICHAEL S.  8:07-cv-00705- CORONA, Sheriff-Coroner for the MMM-MLG County of Orange, OPINION Defendants-Appellees.  Appeal from the United States District Court for the Central District of California Margaret M. Morrow, District Judge, Presiding

Argued and Submitted October 11, 2011—Pasadena, California

Filed February 13, 2012

Before: Edward Leavy and Kim McLane Wardlaw, Circuit Judges, and James C. Mahan, District Judge.*

Opinion by Judge Wardlaw; Partial Concurrence and Partial Dissent by Judge Leavy

*The Honorable James C. Mahan, District Judge for the United States District Court for Nevada, sitting by designation. COUNSEL

Stephen H. Silver and Richard A. Levine, Silver, Hadden, Sil- ver, Wexler, & Levine for plaintiff-appellant William J. Hunt.

Norman J. Watkins and S. Frank Harrell, Lynberg & Watkins for defendants-appellees County of Orange and Michael S.…

concurring in part and dissenting in part:

Pursuant to the Supreme Court’s decision in Pearson v. Callahan, 555 U.S. 223, 236-37 , 129 S.Ct. 808 , 172 L.Ed.2d 565 (2009), we need not decide whether a constitutional violation exists before we reach the question of qualified immunity. Because the majority has chosen to reach the issue whether Carona’s conduct violated Hunt’s constitutional rights, I am compelled to concur in only Sections II. D., Ill and IV of the opinion. I dissent from the majority’s holding that Hunt was not a “policymaker.”

In determining whether an employee is a policy maker, the “ultimate inquiry is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti v. Finkel, 445 U.S. 507, 518 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980). Following Branti , we have explained that the policymaker exception is not limited to “party affiliation,” but includes termination based on “political affiliation, which includes commonality of political purpose and support.” Walker v. City of Lakewood, 272 F.3d 1114, 1132 (9th Cir.2001) (citation and internal quotation…

Opinion by Judge WARDLAW; Partial Concurrence and Partial Dissent by Judge LEAVY.

OPINION

The day after his scandal-ridden third election to the position of Orange County Sheriff-Coroner, Michael Carona placed on administrative leave William Hunt, a former lieutenant officer with the Orange County Sheriffs Department (OCSD), who had dared to enter the race and campaign against Carona’s alleged culture of corruption. Carona then demoted Hunt, an action that prompted Hunt to file this 42 U.S.C. § 1983 suit claiming that his placement on administrative leave and subsequent demotion were in unconstitutional retaliation for the exercise of his First Amendment rights. The district court concluded that Hunt’s campaign speech was not protected by the First Amendment because, based upon special factual findings by a jury, Hunt fell into the narrow “policymaker” exception to the general rule against politically-motivated dismissals. Although we determine that the district court erred in this conclusion, we agree with the district court’s alternative holding that Carona is entitled to qualified immunity because a government official in his position “reasonably but mistakenly” could have…