Sartor v. Cole et al

Filing 33

ORDER granting 20 Motion for Summary Judgment; Plaintiffs due-process claim under Arkansas and federal law is DISMISSED; Court declines to continue exercising supplemental jurisdiction over Plaintiffs remaining claims; Remaining claims remanded to Union County Circuit Court. Signed by Honorable Susan O. Hickey on July 20, 2012. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION

BYRON SARTOR

VS.

PLAINTIFF

CASE NO. 1:12-CV-01011

MAYOR TONY COLE, Individually
and in his Official Capacity as
Mayor of the City of Huttig, Arkansas;
CITY OF HUTTIG, ARKANSAS

DEFENDANTS

ORDER
Pending is Defendants’ Motion for Summary Judgment. (ECF No. 20). Plaintiff has
responded (ECF Nos. 27 & 28), and Defendants have replied. (ECF No. 32). The matter is ripe
for the Court’s consideration.
BACKGROUND
Huttig, Arkansas, through its mayor, Larry Hodge, hired Plaintiff as Police Chief in
December 2009. Plaintiff signed a five-year contract with the City in June 2010. Though he was
hired for a five-year term, his contract allowed him to be fired for cause.
Mayor Tony Cole came into office in January 2011, and fired Plaintiff on January 3. The
stated reason for Mayor Cole’s decision was “incoming staff.” A week later, on January 10,
2011, Huttig’s City Council vetoed Mayor Cole’s decision to fire the Plaintiff, and Plaintiff was
reinstated. Several months later things again became strained between Plaintiff and Mayor Cole.
Mayor Cole suspended Plaintiff with pay on August 8, 2011, allegedly because he believed
Plaintiff’s cluster-migraine headaches would prevent Plaintiff from fulfilling his duties as police

chief, and because Plaintiff impermissibly let his wife ride with him while he was on duty. The
suspension was to last indefinitely. Plaintiff and Mayor Cole met the next day. At the meeting,
Mayor Cole told the Plaintiff that Plaintiff’s migraines put the city at risk, and that none of the
doctors the city consulted could vouch for Plaintiff’s ability to continue on the job. Mayor Cole
gave the Plaintiff a choice: resign or be fired. Plaintiff refused to resign, and Mayor Cole fired
him.
By letter dated August 24, 2011, Plaintiff informed the city council that he was appealing
his termination. Plaintiff, accompanied by his attorney, came to the November 13, 2011 city
council meeting to present his case. Plaintiff’s attorney showed a video of Plaintiff’s August 9
meeting with Mayor Cole. After a short and contentious discussion of Plaintiff’s firing, the
council voted on whether to adjourn the meeting. The vote was a three–three tie. Mayor Cole
cast the tie-breaking vote to adjourn. Because the city council failed to veto Mayor Cole’s
termination decision, Plaintiff remained fired.
Plaintiff brought this suit on December 12, 2011 in Union County Circuit Court. He
makes the following claims against the council and Mayor Cole: 1) breach of contract; 2) abuse
of process; 3) breach of the covenant of good faith and fair dealing; and 4) violation of
procedural due process. Defendants removed the case to this Court on February 17, 2012 relying
on the due-process claim for federal-question jurisdiction. The parties are now before the Court
on Defendant’s motion for summary judgment.
STANDARD OF REVIEW
The standard of review for summary judgment is well established. The Federal Rules of
Civil Procedure provide that when a party moves for summary judgment:

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The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.
Fed.R.Civ.P. 56(a); Krenik v. Cnty. of LeSueur, 47 F.3d 953 (8th Cir. 1995). The Supreme Court
has issued the following guidelines for trial courts to determine whether this standard has been
satisfied:
The inquiry performed is the threshold inquiry of determining whether there is a
need for trial—whether, in other words, there are genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). See also Agristor Leasing v. Farrow,
826 F.2d 732 (8th Cir. 1987); Niagara of Wis. Paper Corp. v. Paper Indus. Union-Mgmt.
Pension Fund, 800 F.2d 742, 746 (8th Cir. 1986). A fact is material only when its resolution
affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. A dispute is
genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either
party. Id. at 252.
The Court must view the evidence and the inferences that may be reasonably drawn from
the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magna
Bank, 92 F.3d 743, 747 (8th Cir. 1996). The moving party bears the burden of showing that there
is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. The
nonmoving party must then demonstrate the existence of specific facts in the record that create a
genuine issue for trial. Krenik v. Cnty. of LeSueur, 47 F.3d at 957. A party opposing a properly
supported motion for summary judgment may not rest upon mere allegations or denials, but must
set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 256.

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DISCUSSION
As noted above, this case is in federal court because of Plaintiff’s due-process claim. That
claim arises under 42 U.S.C. § 1983, and gives the Court federal-question jurisdiction. 28 U.S.C.
§ 1331. Plaintiff’s remaining claims are before the Court on supplemental-jurisdiction grounds
because they “form a part of the same case or controversy” as the due-process claim. 28 U.S.C. §
1367(a). Therefore, if summary judgment is proper on Plaintiff’s due-process claim, the Court
“may decline” to exercise supplemental jurisdiction over the other claims. 28 U.S.C. §
1367(c)(3). Because Defendants are entitled to summary judgment on Plaintiff’s due-process
claim, the Court need not decide the merits of Plaintiff’s remaining claims. Those claims belong
in state court, and will be remanded there.
I.

Procedural due process

The Fourteenth Amendment’s promise of procedural due process is violated when a
protected property interest is at stake, the interest is taken, and it is taken without sufficient
process. Wooten v. Pleasant Hope R-VI Sch. Dist., 270 F.3d 549, 551 (8th Cir. 2001). Under
Article 2 Section 21 of Arkansas’s Constitution, “[d]ue process requires at a minimum that a
person be given notice and a reasonable opportunity for a hearing before he is deprived of
property by state action.” Ark. Dep’t of Corr. v. Bailey, 368 Ark. 518, 525, 247 S.W.3d 851, 856
(Ark. 2007) (quoting Washington v. Thompson, 339 Ark. 417, 425, 6 S.W.3d 82, 87 (Ark.
1999)). The first question the court must ask, then, is whether Plaintiff had a property interest at
stake.
A contract may create a property interest. Singleton v. Cecil, 176 F.3d 419, 421–22 (8th
Cir. 1999). Moreover, public employees who can be fired only for cause ordinarily have a
constitutionally protected property interest in their employment. Gilbert v. Homar, 520 U.S. 924,

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928–29 (1997). If an employee has “a reasonable and legitimate expectation of continued
employment,” then he has a protected property interest in that employment. Kozisek v. Cnty. of
Seward, Neb., 539 F.3d 930, 937 (8th Cir. 2008). Because expectations of employment
ultimately come down to state employment law, Arkansas law governs the reasonableness of
Plaintiff’s employment expectations. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577
(1972); Eddings v. City of Hot Springs, Ark., 323 F.3d 596, 601 (8th Cir. 2003).
Arkansas law gives mayors of first- and second-class cities and incorporated towns the
power to “appoint and remove department heads” unless the city council votes by two-thirds to
override the mayor’s decision. ARK. CODE ANN. § 14-42-110(a) (West 2012). The statute applies
to police chiefs. Sykes v. City of Gentry, Ark., 114 F.3d 829 (8th Cir. 1997); Foster v. City of
Holly Grove, No. 4:05-CV-000563 SWW, 2006 WL 686273, at *2 (E.D. Ark. Mar. 16, 2006).
Where the statute applies, it eliminates any property interest in a police-chief position. Sykes, 114
F.3d at 831 (“Any property interest [police chief] had in his position was eliminated when the
Arkansas Legislature enacted § 110.”).
ARK. CODE ANN. § 14-42-110 decides this case on the undisputed facts. The 2010 census
puts Huttig’s population at 597. 2010 Census Interactive Population Search, CENSUS.GOV,
http://2010.census.gov/2010census/popmap/ipmtext.php?fl=0534090:05 (last visited July 20,
2012). Plaintiff estimates the city’s population at 700. (ECF No. 4, at 1). Either population makes
Huttig a city of the second class under Arkansas law. ARK. CODE ANN. § 14-37-103(a)(2) (“All
cities having five hundred (500) inhabitants or more and fewer than two thousand five hundred
(2,500) inhabitants shall be deemed cities of the second class.”). Because Huttig is a city of the
second class, Huttig’s mayor, Tony Cole, is covered by ARK. CODE ANN. § 14-42-110(a).

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Arkansas and Eighth Circuit law are clear that “[a]ny property interest [plaintiff] had in
his position [as police chief] was eliminated when the Arkansas Legislature enacted § 110.”
Sykes, 114 F.3d at 831. Standard due-process analysis requires a property-interest deprivation
and an absence of constitutionally sufficient process. Swarthout v. Cooke, ___U.S.___, 131 S.
Ct. 859, 861 (2011). Because Plaintiff lacks a property interest of which to be deprived, his dueprocess claim must fail on the facts.
CONCLUSION
Arkansas law precluded Plaintiff from having a protected property interest in his job as
Huttig police chief. Lacking that interest, he may not bring a due-process claim regarding his
firing. Therefore, Defendants’ Motion for Summary Judgment (ECF No. 20) should be and
hereby is GRANTED as to Plaintiff’s due-process claim. Plaintiff’s due-process claim under
Arkansas and federal law is DISMISSED.
The Court declines to continue exercising supplemental jurisdiction over Plaintiff’s
remaining claims, having dismissed all claims over which it has original jurisdiction in this case.
28 U.S.C. §1367(c)(3); D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754,
767 (8th Cir. 2011). Plaintiff’s remaining claims are therefore REMANDED to Union County
Circuit Court for further proceedings.
IT IS SO ORDERED, this 20th day of July, 2012.

/s/ Susan O. Hickey
Hon. Susan O. Hickey
United States District Judge

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