Patton v. City of Crittenden et al

Filing 25

MEMORANDUM OPINION & ORDER: (1) Defendants' motion for summary judgment 13 be, and is hereby, GRANTED as to Patton's federal claims; (2) Patton's motion for reversal from removal of office 10 be, and is hereby, DENIED< /b> as to her federal claims; and (3) Patton's state law claims are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c). A separate judgment shall enter concurrently herewith. Signed by Judge William O. Bertelsman on 1/10/2022.(ECO)cc: COR

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
CIVIL ACTION NO.: 2:21-cv-00014-WOB
CAMILLA PATTON
VS.

PLAINTIFFS
MEMORANDUM OPINION AND ORDER

CITY OF CRITTENDEN;
JENNIFER THURMAN-HUMPHREY;
JAMES PURCELL; JOSEPH DUSING;
DANIEL MARTIN; PAULA LOWERY;
AND TODD ROBERTS, SR.

DEFENDANTS.

This 42 U.S.C. §1983 case arises from the alleged unlawful removal of Plaintiff Camilla
Patton from her position as Mayor of the City of Crittenden. Patton argues the City of Crittenden;
Jennifer Thurman-Humphrey; James Purcell; Joseph Dusing; Daniel Martin; Paula Lowery; and
Todd Roberts, Sr. deprived her of procedural due process rights afforded her under the United
States and Kentucky Constitutions.
This matter is before the Court on two motions. Defendants move this Court to grant their
motion for summary judgment, (Doc. 13), and Patton moves this Court to grant her motion for
reversal from removal of office. (Doc. 10).
The Court previously heard oral argument on these motions. (Doc. 21). Although the
parties thereafter attempted to resolve this matter, they were unsuccessful. (Doc. 24). The Court
therefore now issues the following Memorandum Opinion and Order.

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Factual and Procedural Background
The citizens of the City of Crittenden elected Camilla Patton as Mayor in November 2018.
(Doc. 1-1 at 3). Two months later, Defendants held a city council meeting, where they unanimously
voted “to appoint Mayor Patton as the ABC Administrator[.]” Id. at 16. And that April, Patton
assumed office as Crittenden’s Administrator for the Department of Alcohol and Beverage
Control. Id. at 3.
In June 2019, Patton authorized a check made payable to her for $3000 for fulfilling her
ABC Administrator duties.1 Id. A week later, Defendants held a city council meeting and
ultimately repealed the existing ABC ordinance. And after that meeting, Defendants began to
investigate whether Patton violated Kentucky law by holding incompatible offices as Crittenden’s
Mayor and ABC Administrator. Id.
On November 17, 2020—nearly a year and a half after the investigation began—
Defendants announced charges of misconduct against Patton and informed her that they would
hold a formal removal hearing on November 19. (Doc. 9 at 189-90). During the hearing, Patton
put on a full defense against the charges and was represented by counsel. (Doc. 9). Ultimately,
Defendants unanimously voted to remove Patton from her position as Mayor. They based their
votes on these findings and conclusions made during the hearing:
(1) In June 2019, Patton cause[d] a check to be issued to herself in the net
amount of $2,006.98 drawn against the account of the City of Crittenden, said
amount being in addition to her salary as Mayor[.];
(2) [B]y undertaking the office of Alcohol Beverage Administrator for the
City of Crittenden, [Patton] engaged in a provision of service to the City of
Crittenden;

Under a Crittenden city ordinance, the ABC Administrator would be provided “a minimum salary
of $10,000.00 per annum and a maximum salary of $15,000.00[.]” (Doc. 1-1 at 5).
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(3) Patton’s action of assuming the office of Alcoholic Beverage
Administrator subsequent to having assumed the office of Mayor of the City of
Crittenden … [resulted] in a forfeiture of her office as Mayor of the City of
Crittenden as prescribed by KRS 61.080/61.090;
(4) That the taking of public money in the net amount of $2,006.98 from the
funds of the City of Crittenden for services rendered as Alcoholic Beverage
Administrator in addition to funds she received for her duties as Mayor …
violate[d] the provisions of KRS 83A.070 … as to do with the setting of salaries
prior to the taking of office; and
(5) [T]hat the undertaking to provide services to the City of Crittenden at a
time when [Patton] was acting as Mayor of the City of Crittenden … [violated]
KRS 61.251 and 61.252(2)[.]
(Doc. 10-1 at 7-8).
After her removal from office, Patton filed an appeal in the Grant Circuit Court.
(Doc. 1-1 at 1). Defendants removed the case to this Court based on Patton’s due process
allegations under 42 U.S.C. §1983. Id.
Standard of Review
Summary judgment is appropriate only where 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). “A
genuine dispute of material fact exists ‘if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.’” Griffith v. Franklin Cty., 975 F.3d 554, 566 (6th Cir. 2020)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed.2d 202
(1986)).
“The party bringing the summary judgment motion has the initial burden of informing the
Court of the basis for its motion and identifying portions of the record that demonstrate the absence
of a genuine dispute over material facts.” Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003)
(citation omitted). “The moving party may satisfy this burden by presenting affirmative evidence
that negates an element of the non-moving party's claim or by demonstrating an absence of
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evidence to support the non-moving party's case.” Id. (citation and internal quotation marks
omitted).
In deciding a motion for summary judgment, the Court must review all the evidence, facts,
and inferences in the light most favorable to the party opposing the motion. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986) (citation
omitted). The Court does not, however, weigh the evidence, judge the credibility of witnesses, or
determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct.
2505, 91 L.Ed.2d 202 (1986). The mere existence of a scintilla of evidence in support of the nonmoving party's position will be insufficient to survive summary judgment. Instead, there must be
evidence on which a trier of fact could reasonably find for the non-moving party. Rodgers, 344
F.3d at 595.
Analysis
1. Procedural Due Process
For Article III standing in this Court, Patton’s claims cannot be “so attenuated and
unsubstantial as to be absolutely devoid of merit.” Hagans v. Lavine, 415 U.S. 528, 536–37 (1974)
(quotations and citations omitted). Suing under 42 U.S.C. § 1983, Patton argues that Defendants
violated her Fourteenth Amendment due process rights. And to succeed on this claim, Patton must
show three things: (1) a life, liberty, or property interest in her public office; (2) deprivation of her
protected interest under the Due Process Clause; and (3) that the state did not afford her adequate
procedural rights before the deprivation of her protected interest. Hahn v. Star Bank, 190 F.3d 708,
716 (6th Cir. 1999) (internal citations omitted).
Patton’s only due process contention is that the Defendants deprived her of a protected
property interest in her public office. Property interests “are not created by the Constitution. Rather

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they are created and ... defined by existing rules ... that stem from an independent source such as
state law ...” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
A. No General Property Interest in Public Office
Over 120 years ago, the Supreme Court of the United States held that public officers do
not have a property interest in their positions. See Taylor v. Beckham, 178 U.S. 548, 576 (1900).
The case involved an election for Kentucky's governor and lieutenant governor. Id. at 548. After
the Republican candidates had been declared the winner, the Democratic candidates contested the
results and were later declared victors. Id. When the Republican candidates refused to surrender
their positions, the Democratic lieutenant governor candidate sued. Id. The Republicans argued
that depriving them of their elected offices would be depriving them of “their property without due
process of law.” Id. at 557. Kentucky's Supreme Court held that the case did not assert a Fourteenth
Amendment claim because the right to hold office was not a property right. Id. at 575.
The Supreme Court declined to exercise jurisdiction over the case, stating that “[t]he view
that public office is not property has generally been entertained in this country.” Id. at 576. Instead,
it chose the position that public officials hold their office in a position of trust, rather than retaining
some property interest. Id. at 577. This makes sense because, in theory, individuals that run for
public office should do so in an authentic pursuit of attaining the common good, rather than for
some personal or pecuniary interest.2

2

As Judge Robert Bork explained in his Barnes v. Kline dissent:
[T]hat elected representatives have a separate private right, akin to a property
interest, in the powers of their offices … is a notion alien to the concept of a
republican form of government. It has always been the theory, and it is more
than a metaphor, that a democratic representative holds his office in trust, that
he is nothing more nor less than a fiduciary of the people. Indeed, … the Framers
of the Constitution most certainly did not intend to allow [representatives of the
people to bring suit when the people themselves have no standing to sue], which
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Patton refutes the settled view that she held the office of mayor in mere trust, arguing that
the Court should liken her to an employee. (Doc. 16 at 2). She compares this action to that of a
Sixth Circuit case involving the distinction between at-will and tenured Kentucky employees. Id.;
Crosby v. University of Kentucky, 863 F.3d 545 (6th Cir. 2017). In her view, she is a tenured
employee that can only be removed from office for cause because she has a “legitimate expectation
of continued employment.” (Doc. 16 at 2); Johnston—Taylor v. Gannon, 907 F.2d 1577, 1581 (6th
Cir. 1990). This is not the case, however, for one key reason—Patton is not an employee, but rather
a public officer. And, as stated above, because of this distinction, her position and office are not
afforded due process protections under the United States Constitution. See Houchens v. Beshear,
No. 3:20-CV-00006-GFVT, 2020 WL 3086603, at *4–5 (E.D. Ky. June 10, 2020), aff’d, 850 F.
App'x 340 (6th Cir. 2021).
B. No State-Created Property Interest
Next, the Court must decide whether the Kentucky General Assembly created a cognizable
property interest in Patton’s office through its enactment of KRS 83A.040. In Patton’s view, the
Kentucky statute created a property interest because it defined a mayor’s terms of office and
procedures for removal. The statute states,
[A]ny elected officer, in case of misconduct, incapacity, or willful neglect in the
performance of the duties of his office, may be removed from office by a
unanimous vote of the members of the legislative body exclusive of any member
to be removed, who shall not vote in the deliberation of his removal. No elected
officer shall be removed without having been given the right to a full public
hearing. The officer, if removed, shall have the right to appeal to the Circuit
Court of the county and the appeal shall be on the record. No officer so removed
shall be eligible to fill the office vacated before the expiration of the term to
which originally elected.
means they did not conceive of the powers of elected representatives as apart
from the powers of the electorate.
759 F2d 21, 50 (D.C. Cir. 1984) (Bork, J. dissenting).
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KRS 83A.040(9).
The statute defines the removal process which a legislative body must follow when it
believes a mayor: (1) engaged in misconduct; (2) is incapacitated; or (3) willfully neglected the
duties of their office. And it also provides the mayor a right to appeal any adverse action to a state
circuit court. Because of this, Patton argues her “property interest, as established by KRS
83A.040(9), is cognizable under the Due Process Clause.” (Doc. 16 at 3).
As explained above, the Taylor Court held that “public offices are mere agencies or trusts,
and not property” for the Fourteenth Amendment’s due process context, which clearly expressed
its desire to leave power over political processes exclusively to the states. Taylor, 178 U.S. at 57071. The opinion also reveals that a state must do more than simply define the terms of office to
show an intent to create a property interest in that office. Id. at 577.
Although not directly factually analogous, the Supreme Court’s holding in Harris Cnty.
Commissioners Court v. Moore helps clarify this aspect of Taylor. 420 U.S. 77 (1975). In Harris
County, three justices of the peace and two constables lost their jobs because of Texas’s new
redistricting plan. Id. at 78. After redistricting, four justices and three constables became residents
of a new single precinct that allowed for only two justices and one constable. Id. at 79-80. The
plaintiffs sought to enjoin implementation of the redistricting plan because the Texas statute
providing for their removal from office at the time of redistricting denied them of their Fourteenth
Amendment protections. Id. at 78.
Ultimately, the Supreme Court denied the plaintiffs’ Fourteenth Amendment claims
because Texas courts had not settled whether the Texas Constitution guaranteed the terms of those
elected offices. Id. at 85-89 (“[T]he nub of the whole controversy may be the state constitution.”)
(internal citations and quotation marks omitted). And although the Court did not address a property
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rights question like the one before this Court, it essentially based its ruling on the rationale that it
must dismiss the action because Texas conferred no interest in the plaintiffs’ office. Id. The Court
noted the contours of the offices, as codified in Texas’s Constitution. Id. at 85. In this, it explained
that the Constitution provided elected officials a term of “office for four years and until his
successor shall be elected and qualified”3 and that they could “be removed by state district court
judges for various causes, after notice and a trial by jury.”4
By virtue of the Court’s ruling, the mere existence of Texas’s constitutional provisions for
terms of office and removal did not overcome the hurdle of determining whether the plaintiffs had
protected interests in remaining in their respective offices. Id. at 88 (“In short, not only the
character of the federal right asserted in this case, but even the availability of the relief sought, turn
in large part on the same unsettled state-law questions.”). Because the questions before it were so
“entangled in a skein of state law that [had to] be untangled before the federal case [could]
proceed,” the Court remanded the case to the District Court to dismiss the complaint. Id. This
ruling, although not directly analogous to Taylor, echoes the Court’s rationale not to recognize
Fourteenth Amendment protections where state law is ambiguous or silent as to whether it creates
protected interests in elected offices. Id. at 85-89; Taylor, 178 U.S. at 577.
Here, the Kentucky General Assembly, through KRS 83A.040, defined the terms of office
and removal process for mayors. Within the confines of the statute, there is no language that
confers a vested property interest in the public office. Even so, Patton asks this Court to assume
that the language of the statute presumes an interest in the office.
The Court will not take this unfounded leap in interpretation because Taylor and its
progeny dictate the opposite. In Taylor, the Court held that “the fact that a constitution may forbid

3
4

Id. at 85 (citing TX Const., Art. V, § 18).
Id. (citing TX Const., Art. V, § 24).

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the legislature from abolishing a public office or diminishing the salary thereof during the term of
the incumbent [does not] change its character or make it property.” Taylor, 178 U.S. at 577. The
Court saw the terms of office and other procedures codified in the Kentucky Constitution as limits
and restrictions on “the power of the legislature to deal with the office” that could be “removed by
constitutional amendment[,]” rather than a conferral of a property interest in the office. Id.
Likewise, the Court sees KRS 83A.040’s terms and processes in the same light.
The Court of Appeals for the Sixth Circuit recently re-affirmed Taylor’s holding, stating
that “the right to hold office is not a property right.” Houchens v. Beshear, 850 F. App'x 340, 343
(6th Cir. 2021). By doing this, the Sixth Circuit once again upheld the principle that public officials
in Kentucky assume their positions for the benefit of the public, subject to removal under state law
procedures. See KRS 83A.040(9). In Kentucky, the General Assembly defines the scope of process
due to public officials in prospective removal hearings. Review of these procedural matters are left
to Kentucky’s circuit court and are not subject to federal review.
Since Patton does not have a state created property interest in her office, she lacks standing
for her cause of action under the Fourteenth Amendment’s Due Process Clause. And because of
this, Defendants are entitled to judgment as a matter of law.5
2. Supplemental Jurisdiction
Patton also asserts state law claims.
Supplemental jurisdiction “is a doctrine of discretion, not of plaintiff's right.” United Mine
Workers of Am. v. Gibbs, 383 U.S. 715 (1966). The code “includes an explicit provision permitting
the district court to decline to exercise supplemental jurisdiction when that court has dismissed all

5

The Court thus need not reach defendants’ immunity arguments.
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of the claims over which it has original jurisdiction.” Weeks v. Portage County Executive Offices,
235 F.3d 275, 280 (6th Cir. 2000).
Because this Court is granting summary judgment against Patton on her federal claims, it
will decline to exercise jurisdiction over her state law claims to avoid unnecessarily addressing
issues of state law.
Therefore, having reviewed this matter, and the Court being advised,
IT IS ORDERED that: (1) Defendants’ motion for summary judgment (Doc. 13) be, and
is hereby, GRANTED as to Patton’s federal claims; (2) Patton’s motion for reversal from removal
of office (Doc. 10) be, and is hereby, DENIED as to her federal claims; and (3) Patton’s state law
claims are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c). A separate
judgment shall enter concurrently herewith.
This 10th day of January 2022.

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