Englar et al v. 41B District Court et al

Filing 97

ORDER REQUESTING AMICUS CURIAE BRIEF FROM THE MICHIGAN STATE COURT ADMINISTRATIVE OFFICE (SCAO). Signed by District Judge Paul D Borman. (Attachments: # 1 Document Continuation) (DGoo)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION NANCY ENGLAR, et al., Plaintiffs, vs. HONORABLE PAUL D. BORMAN 41B DISTRICT COURT, et al., Defendants. ____________________________/ ORDER REQUESTING AMICUS CURIAE BRIEF FROM THE MICHIGAN STATE COURT ADMINISTRATIVE OFFICE (SCAO) This is a civil rights case. Plaintiffs Patricia Barachkov, Nancy Englar, and Carol Diehl (collectively, "Plaintiffs"), all of whom are former employees of the 41B District Court in Clinton Township, Michigan, claim that they were terminated from their respective positions at the court in retaliation for statements made during a management oversight review conducted by the Michigan State Court Administrative Office. Plaintiffs are suing the 41B District Court and its then-Chief Judge, Linda Davis. Plaintiffs' Complaint asserts the following claims: Count I: Count II: Count III: Count IV: Count V: Count VI: Count VII: 42 U.S.C. § 1983: Freedom of Speech and Association 42 U.S.C. § 1983: Procedural Due Process Wrongful Discharge/Breach of Implied Contract and Legitimate Expectations Tortious Interference with a Contractual Relationship/Business Expectancy Defamation Michigan Whistleblower Protection Act Public Policy Tort Civil Action No. 04-CV-73977

On September 22, 2006, the Court issued an order in which it, among other things, found that the 41B District Court and Clinton Township were entitled to sovereign immunity. See docket entry 71. Plaintiffs appealed the Court's judgment to the United States Court of Appeals for the Sixth Circuit. On February 20, 2009, the Sixth Circuit issued an opinion in which it, among other things, remanded the sovereign immunity issue for further proceedings. See Barachkov v. 41B Dist. Court, 311 Fed. App'x 863, 866-869 (6th Cir. 2009) (attached). In its opinion, the Sixth Circuit noted that "`[sovereign] immunity does not attach if the lawsuit is not against the State or an `arm of the state,'" id. at 867 (quoting Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2005)), and that [i]n determining whether a public entity is an "arm of the state" entitled to immunity, or a "political subdivision" which is not, we consider several factors: (1) the potential liability of the State for any judgment against the entity; (2) the language used by state statutes and courts to refer to the entity, and the degree of state control and veto power over the entity's actions; (3) whether the board of the entity is appointed by state or local officials; and (4) whether the entity's functions fall within the traditional purview of state or local government. Id. (citing Ernst, 427 F.3d at 359). The Sixth Circuit also emphasized that "`the question of who pays a damage judgment against an entity [is] the most important factor in arm-of-the-state analysis.'" Id. (quoting Alkire v. Irving, 330 F.3d 802, 811 (6th Cir. 2003)). Within 30 days of today's date, the State Court Administrative Office is requested to submit an amicus curiae brief, not to exceed 20 pages in length, in which it sets forth its position on each of the four factors to be considered by the Court in determining whether the 41B District Court is entitled to sovereign immunity. The Court notes that the Sixth Circuit held that while each of the four factors must be considered, the question of who pays a damage judgment against an entity is the most important factor in arm-of-the-state analysis, and that the inquiry into liability must focus 2

on the state treasury's potential legal liability for the judgment, not whether the state treasury will pay for the judgment in this case (quotation marks and citations omitted).1 SO ORDERED.

S/Paul D. Borman PAUL D. BORMAN UNITED STATES DISTRICT JUDGE Dated: October 23, 2009 CERTIFICATE OF SERVICE Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on October 23, 2009. S/Denise Goodine Case Manager

The parties shall not communicate with the SCAO regarding this matter during the next 30 days except that the parties may produce any pleadings and/or papers filed in connection with this matter, if requested by the SCAO. 3

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