Election Commissioners Found to be Immune from Liability for Monetary Damages in Federal Lawsuit

January 22, 2011
by: 
Dwayne Page
Members of the DeKalb County Election Commission

Claims for monetary damages in a federal lawsuit filed against Republican members of the DeKalb, Hawkins, Weakley, and Putnam County Election Commissions have been dismissed.

U.S. District Judge Thomas A. Wisemen, Jr. last month issued a ruling in the case and a 21-page memorandum opinion stating that the election commissioners, in their official capacities as state actors, are not subject to liability for the monetary damages sought. Other issues of the lawsuit have yet to be decided.

However, County Attorney Hilton Conger told WJLE Friday the federal court's ruling raises another question. If county election commissioners are considered "state actors", or "state employees" as he put it, then does the county's insurance pool still have to provide a legal defense for these election commissioners"?

In the order, Judge Wiseman wrote that " Specifically, the court finds that the claims for monetary damages asserted against the defendants in their official capacity are subject to dismissal because the defendants, in their official capacity as state actors, are not subject to liability for monetary damages. Second, the claims against the defendants in their individual capacity for monetary damages are subject to dismissal because the defendants, in their individual capacity are shielded by qualified immunity from liability for monetary damages. Even assuming the allegations in the complaint to be true, the defendants' conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known, in light of the fact that the question of whether county administrators of elections are protected from patronage dismissal remains an unsettled question of law. The motion to dismiss the claims for monetary damages against the defendants in both their representative and individual capacities will therefore be granted."

Judge Wiseman's ruling is being appealed to the U.S. Sixth Circuit Court, although a challenge has been filed as to whether the appellate court has jurisdiction.

If the ruling stands, County attorney Conger said he wants to know if the county's insurance pool is still required to provide a legal defense for the election commissioners, or if the state will take over the representation. Conger said he may write a letter to the state attorney general asking for an opinion. "The county, in light of this ruling, feels that since they (election commissioners) are state employees, the state attorney general's office ought to be the one to defend them (election commissioners). So I'm going to draft a letter to the state attorney general requesting that he do that. We're going to make a demand on the attorney general to defend this. Also, since there's been an appeal filed, the question arises does the attorney general's office represent them on the appeal or does the commission have to have their own attorney to defend the appeal?"

The Republican members of the DeKalb County election commission have been represented by Mary Ferrara, an attorney for the local government insurance pool. But, again Conger said that could change with this ruling by the federal court. "They (insurance pool) have provided the defense up to this point. Now that there's been a ruling that they (election commissioners) are state employees, the local government pool could say they are no longer county employees so our representation is done. So right now the election commission (defendants) is in the posture of having to either hire it's own attorney, and they don't have the money to do that, or the state attorney general's office will pick it up."

Meanwhile, in the latest development court documents were filed Friday demanding that the plaintiffs show cause within twenty one days whether the issue has appellate jurisdiction.

According to the documents, "The denial of a motion to dismiss based on a claim of qualified or absolute immunity is an appealable final decision.But orders granting a motion to dismiss on this basis are not similarly appealable."

"It is therefore ordered that the plaintiffs show cause within twenty-one (21) days of the file date of this order why their appeal should not be dismissed for lack of appellate jurisdiction.

Following the receipt of a response or the expiration of the 21-day response period, whichever occurs first, the remaining parties, if they so choose, have ten (10) days in which to file a reply. Thereafter, the issue of appellate jurisdiction will be referred to the court for review."

Locally, the federal court lawsuit was filed by former election administrator Lisa Peterson who was not re-appointed in 2009 by the Republican majority of the local election commission. Another case involving the election commission, also filed by Peterson, in DeKalb County Chancery Court is still pending.

Republican members of the DeKalb County Election Commission are Walteen Parker, Barbara Vanatta, and Jim Dean. Democratic members are Nolan Turner and Kenneth Moore.

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