UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

DAVID SANCHEZ, DONALD JACKSON,

JUDY FATH-JACKSON, TRUDY WILDE,

BARBARA SANCHEZ, GEORGE BROWN,

and ROSEMARY BROWN, 

Plaintiffs,

 v. Case Number: 09-12076-BC

Honorable Thomas L. Ludington

TOWNSHIP OF KOCHVILLE, ALAN BADER,

MARTIN YANCER, EDWARD TAYLOR, 

JERRY DAVIS, RANDY NORTON, CRYSTAL

KAUER, and PATRICIA BOURDOW,

Defendants.

_______________________________________/

OPINION AND ORDER OVERRULING PLAINTIFFS’ OBJECTIONS, ADOPTING

JUDGE BINDER’S REPORT AND RECOMMENDATION, GRANTING DEFENDANTS’

MOTION TO DISMISS AND FOR SUMMARY JUDGMENT, AND DISMISSING

PLAINTIFFS’ COMPLAINT WITH PREJUDICE

United States Magistrate Judge Charles E. Binder issued a report and recommendation

(“R&R”) [Dkt. # 33] on October 14, 2010, recommending that the Court grant Defendants’ motion

to dismiss and for summary judgment [Dkt. # 25]. Judge Binder determined that all of the Plaintiffs’

claims lack factual or legal support. 

Any party may serve and file written objections to an R&R “[w]ithin fourteen days after

being served with a copy” of the report. 28 U.S.C. § 636(b)(1). Plaintiffs filed objections on

October 25, 2010 [Dkt. # 34] and Defendants filed a response on November 4, 2010 [Dkt. # 35].

The district court will make a “de novo determination of those portions of the report . . . to which

objection is made.” Id. The Court is not obligated to further review the portions of the report to

which no objection was made. Thomas v. Arn, 474 U.S. 140, 149–52 (1985). “Generally, the failure

to file specific objections to a magistrate’s report constitutes a waiver of those objections.” Cowherd

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v. Million, 380 F.3d 909, 912 (6th Cir. 2004) (citation omitted). For the reasons explained below,

Plaintiff’s objections will be overruled, Judge Binder’s R&R will be adopted, Defendants’ motion

to dismiss and for summary judgment will be granted, and Plaintiffs’ complaint will be dismissed

with prejudice.

I

Judge Binder summarized the procedural and factual history of the case in his R&R:

Plaintiffs are residents of Kochville Township in Saginaw County, Michigan,

who allege that their First and Fourteenth Amendment rights were violated by

Defendants when Defendants disqualified Plaintiffs from serving on the Kochville

Township Board of Trustees based on their previous support of a recall effort in that

township. (Doc. 1 ¶¶ 25-44.) Defendants filed the instant motion to dismiss or for

summary judgment on June 30, 2010. (Doc. 25.) On July 7, 2010, United States

District Judge Thomas L. Ludington referred the motion to the undersigned

magistrate judge. (Doc. 26.) Plaintiff responded (Doc. 28) and Defendants replied.

(Doc. 29.) Oral argument was held on August 18, 2010. After considering the

arguments of the parties and upon review of the documents, I conclude that, pursuant

to E.D. Mich. LR 7.1(e)(2), this motion is ready for Report and Recommendation.

Plaintiffs’ complaint specifically alleges that in the fall of 2005, Plaintiffs

formed a concerned citizens group called “Kochville First” in order to call attention

to and prevent a proposed rezoning of Kochville Township (hereafter “the

Township”) that would allow for commercial development. (Doc. 1 ¶¶ 20-22.) The

rezoning was prevented, and in April 2006, a petition was circulated to recall the

Township Trustees based on the zoning issue, alleged violations of the Open

Meetings Act and for appointing relatives to township positions. (Doc. 1 ¶¶ 23-24.)

The recall petition was successful and, after four trustees were removed, only

Patricia Bourdow remained. (Doc. 1 ¶ 25.) 

Since one trustee did not a quorum make, the Saginaw County Election

Commission (“Election Commission”) began an initial search for two persons to

temporarily serve on the Township Selection Committee that would in turn select

two persons to serve on the Township Board of Trustees. (Doc. 1 ¶ 26.)

Applications were due no later than August 21, 2006. (Doc. ¶ 27.) At the August

14, 2006, meeting of the Election Commission, it was noted that the Commission

was “seeking applicants who were not involved in the recall petition.” (Doc. 1 ¶ 27.)

On August 16, 2006, the Election Commission “established the process for

filling vacancies generated from the recall effort,” i.e., the positions of Township

Clerk and Treasurer. (Doc. 1 ¶ 28.) The Election Commission indicated that the

“applicants must be registered voters” and that the Commission, along with the sole

remaining Trustee, would select the two members of the Township’s Board of

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Trustees who would serve temporarily until the next general election in November

2006. (Doc. 1 ¶¶ 28-29.) The application asked only whether the candidate was a

registered voter in the Township, whether the candidate had ever been convicted of

a felony, whether the candidate understood the position was temporary and why the

candidate was interested in the position. (Doc. 25, Ex. 1.)

At the August 21, 2006, Election Committee meeting, Defendant Bader listed

the Plaintiffs along with others who had been involved in the recall effort and

“announced that these people should not be considered for any temporary Board

position.” (Doc. 1 ¶ 30.) At other Election Committee meetings occurring on

August 16, and August 23, 2006, “residents questioned why and/or how the

Commission or the Township could disqualify applicants because they were

participants in either the recall or referendum efforts.” (Doc. 1 ¶ 31.) Despite these

discussions, the only qualifications for the openings listed on the Election

Commission’s posting were that the candidates must be residents of the Township

and registered to vote in the Township. (Doc. 1 ¶ 32.)

The Election Committee chose Defendants Taylor and Yancer to join

Defendant Bourdow on the Selection Committee. (Doc. 1 ¶ 33.) The Election

Committee then created an application form regarding the two open positions on the

Township Board of Trustees and question 15 of that form asked “about the

applicant’s involvement in the recall and/or referendum efforts.” (Doc. 1 ¶ 34; Ex.

A.) When Plaintiffs “made public comments that they believed it was or would be

unconstitutional to judge applicants according to their answers to question #15 [,]

[t]he Plaintiffs were assured that item/question #15 would be ‘used for reference

only.’” (Doc. 1 ¶ 35.) “Some of the applicants who answered ‘yes’ to question #15

were selected for an interview” but were “grilled” about involvement with the recall

or referendum efforts and were “then disqualified.” (Doc. 1 ¶ 36.)

On September 5, 2006, Plaintiff Fath-Jackson was interviewed by the

Selection Committee for the Treasurer position but was turned down and was told

by Defendant Yancer that “because she had signed the recall petition, they had to

chose the other applicant, Defendant Norton.” (Doc. 1 ¶ 38.) On September 26,

2006, Plaintiffs Sanchez and Fath-Jackson were interviewed for the Supervisor and

Trustee positions that had been posted. They were asked about question 15, and

although they were qualified for the positions, they were denied employment. (Doc.

1 ¶ 41.) On October 2, 2006, Plaintiff Jackson applied to be a member of the

Township’s Planning Commission but was not appointed to that position until

December 20, 2008, “after election of a new Township Trustee Board.” (Doc. 1 ¶

42.) At the November 21, 2006, Township Board meeting, when referring to the

process of choosing an additional Trustee, Township Treasurer Defendant Kauer

stated that “‘we should stay away from the people that brought around petitions

which were about fifteen (15) people.” (Doc. 1 ¶ 43, Doc. 1 Ex. C at 7.)

Apparently Plaintiffs George Brown, Rosemary Brown, and Trudy Wilde

applied for the remaining Trustee position “at one time or another,” but were not

chosen. (Doc. 1 ¶ 44.)

Plaintiffs allege that they were “denied employment and/or appointment” and

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 Judge Binder’s final conclusion—that no constitutional violation had occurred—would

be sufficient to dismiss the claims against all the parties. Because the Court has determined that

conclusion was correct, it is unnecessary to review Judge Binder’s alternate conclusions as to the

Township, Davis, and Norton. Accordingly, to the extent Plaintiff’s objections focus on Judge

Binder’s alternate conclusions, it is unnecessary to address those objections.

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were “verbally abused and publicly humiliated by the Defendant’s Trustees during

monthly meetings since the recall and/or referendum efforts.” (Doc. 1 ¶ 45.)

Plaintiffs aver that the above actions violated their Fourteenth Amendment rights to

due process because they have a liberty interest “not to be stigmatized by false and

untrue statements [or] guilt by association . . . that would thereby seriously hinder

the Plaintiff’s ability to obtain and/or keep employment with the Township,” and

because they have a property interest in obtaining employment with the Township.

(Doc. 1, Count I, ¶¶ 47-48.) Plaintiffs further aver that the above actions constituted

violation of their First Amendment rights because Defendants retaliated against them

for exercising their rights of free speech. (Doc. 1, Count II.) Plaintiffs seek

compensatory and punitive damages. (Doc. 1 at 13.)

R&R at 1–5 (footnotes and headings omitted). Notably, if Defendants’ conduct violated Michigan

election law or the State Constitution, Plaintiffs have not raised those concerns here and may be

unable to do so in this Court of limited jurisdiction. 

Judge Binder determined that Plaintiffs’ claims against the Township should be dismissed

because the Plaintiffs could not demonstrate that a Township policy was the “moving force” behind

the alleged unconstitutional employment condition. See Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 691–92 (1978). He next decided that the claims against Defendants Davis and Norton should

be dismissed because Plaintiffs’ did not allege that either person actually participated in the

challenged activity. Finally, Judge Binder determined that the claims against the remaining

Defendants should be dismissed because Plaintiffs could not show that a constitutional violation had

occurred.1

 Specifically, Plaintiffs could not demonstrate that they possessed a protected property

or liberty interest under the Fourteenth Amendment or that the Defendants’ alleged wrongdoing was

“conscience shocking.” Further, Defendants demonstrated that the positions for which Plaintiffs

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applied involved discretionary policy making authority, meaning that political affiliation could be

an appropriate consideration of the hiring committee. 

II

As Plaintiffs emphasize, public employment decisions generally may not be based on the

political beliefs of the employees. See Summe v. Kenton Cnty. Clerk’s Office, 604 F.3d 257, 264

(6th Cir. 2010) (citing Elrod v. Burns, 427 U.S. 347 (1976)). However, for certain types of

“policymaking” or “confidential” positions, political ideology may be an appropriate consideration.

Id. at 264–65; see also Branti v. Finkel, 445 U.S. 507, 517 (1980). The key question is “whether

the hiring authority can demonstrate that party affiliation is an appropriate requirement for the

effective performance of the public office involved.” Lane v. City of LaFollette, 490 F.3d 410, 419

(6th Cir. 2007) (quoting Branti, 445 U.S. at 518). If political beliefs may be considered when

selecting candidates for a particular position, that position is said to qualify for a “patronage

exception.” Summe, 604 F.3d at 264–65.

In McCloud v. Testa, 97 F.3d 1536, 1557 (6th Cir.1996), the Sixth Circuit outlined

four categories of government positions that will always qualify for patronage

exceptions: (1) those that are specifically named in a relevant statute or that are

charged with the discretionary authority to carry out the law or other policy of

political concern; (2) a position to which discretionary decisionmaking of the first

category has been delegated; (3) confidential advisors who spend a significant

amount of their time advising category-one employees on how to exercise their

statutory policymaking authority, or other employees who control the lines of

communications to category-one employees; and (4) positions filled to balance out

party representation.

Id. at 265.

Plaintiffs first object to Judge Binder’s conclusion that the positions for which Plaintiffs

applied fall within the patronage exception, contending that whether or not the positions fall within

the exception is an issue of fact that should be submitted to a jury. Defendants respond that

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 As Defendants emphasize, Plaintiffs did not object to Judge Binder’s conclusion that the

alleged wrongdoing was not “conscience shocking” and Plaintiffs’ substantive due process

claims could be dismissed on that basis alone. See Cowherd, 380 F.3d at 912 (requiring

“specific” objections). Moreover, substantive due process claims are not available where

Plaintiff has a remedy in an “explicit textual source of constitutional protection,” such as the

First Amendment provides in this case. Graham v. Connor, 490 U.S. 386, 395 (1989). 

Nevertheless, Judge Binder’s conclusion with respect to Plaintiffs’ due process claims relied in

part on the lack of a protected property or liberty interest and the Court will address Plaintiffs’

objection with respect to that claim. 

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township board members are elected officials with ultimate authority for establishing township

policy. As a result, Defendants contend, political affiliations and beliefs are an appropriate

consideration for county authorities charged with appointing temporary members of the township

board.

Under Michigan law, members of a township board fit squarely into the first McCloud

category, and therefore “always qualify for patronage exceptions.” Id. (emphasis added); see, e.g.,

Mich. Comp. Laws §§ 125.3102(n) (defining “legislative body” to include township boards);

125.3202 (providing township board with discretionary policy making authority over zoning).

Accordingly, no reasonable jury could conclude that township board members do not qualify for the

patronage exception and Judge Binder did not err in recommending dismissal of Plaintiffs’ First

Amendment retaliation claims on that basis. As a matter of law, political beliefs are an appropriate

consideration for a selection committee to consider when appointing temporary members of a

township board. See Branti, 445 U.S. at 518.

Plaintiffs next object to Judge Binder’s conclusion that Plaintiff’s cannot establish a

protected property or liberty interest in their prospective employment on the township board as

required to support a substantive due process claim.2

 Plaintiff’s argue that “[i]f cessation of

employment can state a Fourteenth Amendment due process claim, refusal of employment should

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 The argument is presented as a direct quote from Elrod, 427 U.S. at 357. The quoted

language does not, however, appear anywhere in the Supreme Court’s opinion in that case. 

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also state a Fourteenth Amendment due process claim.” Plaintiffs do not, however, advance any

legal support for their argument.3

 A plaintiff does not have a protected property interest in her

continued employment when she is just one of many candidates for a position. Even if the

prospective employee was treated unfairly, she was not deprived of any “legitimate claim of

entitlement” in the process. Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).

III

As a matter of law, Plaintiffs cannot demonstrate that the selection committee’s consideration

of their political beliefs in determining whether or not to appoint them to temporary positions on the

township board violated the First or Fourteenth Amendments. 

Accordingly, it is ORDERED that Plaintiffs’ objections [Dkt. # 34] to Judge Binder’s report

and recommendation are OVERRULED.

It is further ORDERED that Judge Binder’s report and recommendation [Dkt. # 33] is

ADOPTED.

It is further ORDERED that Defendants’ motion to dismiss and for summary judgment [Dkt.

# 25] is GRANTED.

It is further ORDERED that Plaintiffs’ complaint [Dkt. # 1] is DISMISSED WITH

PREJUDICE.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: January 25, 2011

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PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on January 25, 2011.

s/Tracy A. Jacobs 

TRACY A. JACOBS

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