FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRUCE EKLUND, an individual, 

Plaintiff-counter-claim-defendantAppellant,

v.

CITY OF SEATTLE MUNICIPAL COURT,

a municipal corporation,

Defendant-counter-claimantNo. 09-35652 plaintiff-Appellee,  D.C. No. FRED BONNER; JANE DOE BONNER;

2:06-cv-01815-TSZ GAYLE TAJIMA; JOHN DOE TAJIMA,

and their marital community;

YOLANDE WILLIAMS; JOHN DOE

WILLIAMS, and their marital

community; MARK PARCHER; JANE

DOE PARCHER, and their marital

community,

Defendants-Appellees. 

BRUCE EKLUND, an individual, 

Plaintiff-counter-claim-defendantAppellee,

v. No. 09-35676

FRED D.C. No. BONNER, 

Defendant-Appellant, 2:06-cv-01815-TSZ

CITY OF SEATTLE MUNICIPAL COURT, OPINION

a municipal corporation,

Defendant-counter-claimantplaintiff-Appellant. 

18745
Appeal from the United States District Court

for the Western District of Washington

Thomas S. Zilly, Senior District Judge, Presiding

Argued and Submitted

August 6, 2010—Seattle, Washington

Filed November 24, 2010

Before: William C. Canby, Jr., John T. Noonan and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Noonan;

Concurrence by Judge Canby

18746 EKLUND v. SEATTLE MUNICIPAL COURT
COUNSEL

Charles C. Stockmeyer, Seattle, Washington, for plaintiffcounter-claim-defendant-appellant-appellee Bruce Eklund.

Amy B. Lowen, Seattle, Washington, for defendants-counterclaimant-plaintiffs-appellees-appellants Seattle Municipal

Court, et al.

OPINION

NOONAN, Circuit Judge:

Bruce E. Eklund (Eklund) brought this suit under 42 U.S.C.

§ 1983 against the City of Seattle Municipal Court (the

Municipal Court), the chief judge of the court, Fred Bonner

(Bonner), and others. Eklund alleged wrongful termination of

18748 EKLUND v. SEATTLE MUNICIPAL COURT
his employment by the Municipal Court and denial of due

process of law in his termination. A jury returned a verdict for

the defendants on the wrongful termination claim and for

Eklund on the due process claim. Bonner and Eklund each

appeal.

Holding that Bonner was entitled to qualified immunity, we

reverse the judgment of the district court and remand for entry

of judgment in favor of Bonner. 

Other issues of Washington law involving the other defendants are addressed in a memorandum disposition filed contemporaneously with this opinion.

FACTS

Eklund attended Central Washington University. At age 19,

he began working for the state legislature. In 2001, at the age

of 23, he was hired as an administrative staff assistant in the

Municipal Court at an annual salary of about $13,000. He was

eventually promoted to the position of Strategic Advisor at a

salary of $49,000. At all times of his service for the Municipal

Court he was an at-will employee.

What led to his discharge and this lawsuit is set out in correspondence between him and Judge Bonner.

On July 7, 2004, Judge Bonner wrote Eklund:

I have reviewed the investigative report pertaining to

how you handled monetary obligations you owed the

court. Through exhaustive fact finding, it was determined that you benefitted financially from improper

adjustments to your court record and participated in

a plan to continue your monetary obligations and

avoid penalties.

On multiple occasions, your co-worker, who is also

a friend, revised your court record and interfered

EKLUND v. SEATTLE MUNICIPAL COURT 18749
with the defaulting and collections referral of your

tickets. Your MCIS obligation due dates were

extended twelve times on six citations, four of your

citations were recalled from collections (one month,

six months, nine months and 28 months after collection referral), and nine default penalties totaling

$210.00 were removed. In all, your friend took

action on ten citations belonging to you.

During your fact finding you acknowledged asking

your friend for assistance with your outstanding

court matters. You explained that you had multiple

discussions with your friend regarding your citations, and that on at least one occasion — your first

meeting — you met your friend off site over coffee

to make arrangements. You said you were too

embarrassed to present yourself as a customer at the

court’s compliance service counter.

Your tickets were managed/tracked carefully so that

they could be updated before the expiration of obligation due dates. You said you could not explain

how they were monitored. You did not consult a

supervisor for assistance or advice on how to appropriately resolve your outstanding monetary obligations nor did you request magistrate hearings to

adjudicate your tickets. Instead, you made personal

arrangements with your friend for the resolution of

your court matters.

You denied any wrongdoing, and said you believed

your friend was handling your tickets in the same

manner that he would work any citizen’s court matters. You told management that you asked your

friend to set you up on a time payment plan and

thought he had done so. Yet, you acknowledge that

you made no down payment, were not given a payment schedule and made no installment payments.

18750 EKLUND v. SEATTLE MUNICIPAL COURT
You said you did not know that your friend was

removing your default penalties, but you did notice

that the total balance was smaller than you expected.

You also explained that you did not know your tickets were in collections nor did you know that your

friend recalled your tickets from collections.

You told management that you are not familiar with

how citations “work” in MCIS, and therefore you

did not know what to expect in terms of your citations defaulting and being sent to collections. You

suggested that your lack of familiarity with the system explains why you were unaware of the actions

being taken on your behalf.

Although you acknowledged receipt of the SMC

Employee Handbook, which contains policies prohibiting your conduct, and signed a statement that

you understood you were expected to adhere to the

policies, you said you were unaware at the time that

your actions violated any court or City policies.

You said you now recognize that you acted irresponsibly in your duty to resolve your tickets in a timely

manner. You offered to repay the court the penalties

that were removed and stated your desire to resolve

this matter in the best possible way. You explained

that in retrospect you could understand why management is concerned about the appearance of this situation.

I have found your explanation for your conduct to be

inadequate, and frankly, the lack of knowledge

inferred in your responses to the fact-finding questions is suspect.

I have concluded from the information contained in

this investigation that you (1) collaborated with your

EKLUND v. SEATTLE MUNICIPAL COURT 18751
friend and co-worker on an improper arrangement

that benefited you financially and attempted to cover

up this fact and (2) had knowledge that some, if not

all, of the actions taken were improper.

Your actions constitute serious misconduct. You violated the SMC Code of Conduct, City of Seattle

Code of Ethics, SMC Failure to Appear or Failure to

Pay Policy, SMC Violations of Seattle Municipal

Court Policy, SMC Information Access Policy, and

SMC Workplace Expectations for Employees. Furthermore, you collaborated with a person whose

actions may be considered a violation of RCW

40.16.010, which criminalizes the alteration or

removal of a public document.

This misconduct is of such severity that, absent mitigating circumstances, substantial discipline in the

form of discharge could be warranted. The violations

are serious enough that the court could decide to

refer this case to the Seattle Police Department for

criminal investigation and potential prosecution.

As such, I am considering termination of your

employment from the court. Effectively immediately, you are being placed on paid Administrative

Leave pending resolution of this matter. You may

not be in the workplace during your Administrative

Leave. If you need to communicate with the court

for any purpose, you are to contact the court’s Senior

Human Resources Representative, Janice Flaagan, at

206-684-5662.

I am granting you the opportunity to respond to me

regarding the proposed disciplinary action, in writing

or in person. You may have a representative of your

choosing with you at our meeting, should you decide

to respond in person.

18752 EKLUND v. SEATTLE MUNICIPAL COURT
Please indicate to me no later than 4:00 p.m. on Friday, July 9, 2004 if you desire to respond in writing

or in person, by contacting Ms. Flaagan at 206-684-

5662.

If you wish to meet with me in person, a meeting

will be scheduled for you the week of July 12, 2004.

cc: Yolande E. Williams, Court Administrator

Gayle Tajima, Director of Finance & Administrative Services

Mark Parcher, Director of Court Operations

Janice Flaagan, Human Resources

Eklund chose to meet with Bonner in person.

On July 12, 2004, Eklund faxed Bonner a letter from

Eklund’s counsel, Paul G. Eklund:

Dear Judge Bonner

Perhaps a brief introduction is appropriate. You

have arranged an administrative employment hearing

for Bruce Eklund at 10am on Wednesday, July 14,

2004 (Loudermill type hearing). This hearing is pursuant to a July 7, 2004 disciplinary letter signed by

you and addressed to Bruce. As a court employee,

Mr. Eklund has a right to the presence of a ‘special

representative’ at this hearing.

Bruce requested that attorney Phil Talmadge

appear with him as his special representative. However, Mr. Talmadge has a deposition already scheduled for that date and time. I have practiced with Phil

in an ‘of counsel’ relationship since his departure

from the Supreme Court. I am available to attend on

July 14. It appears that you are in two conflicting

roles: in one sense bringing allegations for Bruce to

EKLUND v. SEATTLE MUNICIPAL COURT 18753
defend and then simultaneously acting as an impartial hearing officer. This presents a clear due process

issue.

On behalf of Bruce, I request a brief continuance

of the July 14 hearing, and also the appointment of

an impartial hearing officer. Phil is scheduled to

have surgery later in July. However, I can appear

with Bruce during the week of July 19. Presently I

am in Eastern Washington, and if our requests are

denied then I will need to arrange to drive to Seattle

tomorrow. My telephone number (with voice mail)

is 509-996-3498. You may also leave a message at

my law office (206 575-1482). Phil and I share the

same fax number (206 575-1397).

We will forward a brief written Memorandum and

a few exhibits outlining Bruce’s response to the July

7, 2004 letter from Judge Bonner. I will arrange to

have this letter sent via facsimile on July 12 and the

materials delivered to Judge Bonner’s office by July

13. Thank you for your consideration. Please call me

no later than 10am on Tuesday, July 13, to let me

know if I should be present for the hearing as scheduled (July 14 at 10 am). The best way to contact me

today or tomorrow is via telephone at (509) 996-

3498.

Sincerely,

Paul G. Eklund

Enclosure: Memorandum of Employee Bruce

Eklund (via messenger or fax)

cc: Mr. Phil Talmadge, Esq.

Mr. Bruce E. Eklund

Faxed together with this letter from Eklund’s counsel was

the following letter to Bonner from Eklund himself:

18754 EKLUND v. SEATTLE MUNICIPAL COURT
Dear Judge Bonner:

Thank you for arranging today’s hearing. I have

prepared this outline to summarize the primary

issues related to accusations brought by Mark Parcher through a July 7, 2004 letter signed by you. It

is my understanding that you wish to conduct a hearing to evaluate the allegations and investigation of

Mr. Parcher (as outlined in your letter to me), as well

as to consider any mitigating circumstances.

Response to Allegations

It is my understanding that in March 2004, SMC

conducted an investigation regarding failure to pay

citation (FTP) by certain employees of the City of

Seattle. Though I had paid all outstanding parking

citations, Mr. Parcher forwarded a report to you indicating that I had violated unspecified provisions of

the SMC Handbook. On April 22, 2004 I was initially confronted with data indicating that I had

arranged special treatment for payment of my tickets. At that time I was presented with Exhibit A.

Later, I was presented with information which is

(inaccurately) summarized in Exhibit B (undated

‘Investigation Summary of Steven Mack and Bruce

Eklund’).

Before responding to several specifics in Exhibit

A, I will provide your honor with the same history

that I provided to Mr. Parcher and others assisting in

the investigation. I received six parking citations.

The vehicle address was at my mother’s house (for

she co-signed the loan). In March 2003, my mother

contacted me and gave me several citation notices

that came to her house. I informally mentioned this

to Steven Mack. However, I made all arrangements

EKLUND v. SEATTLE MUNICIPAL COURT 18755
for payment of my citations by coming to the court

window (#10) and requesting to make payments.

For six citations, I owed $200 (five at $35 and one

at $25). I paid a total of $348 (see attached proof of

payments). The July 7 letter from Hon. Fred Bonner

states that I should pay an additional $210, for a total

of $458 (on base fines of $200). I am willing to do

this if the court so requests. For reasons I will

explain orally (and summarize herein), I do not

believe that losing my job is appropriate. When I

became aware of the citations, I went to the court

window and made arrangements to pay them. I never

asked for special privileges and made payments,

paying off all tickets and penalties (of which I was

aware).

Specific Response to Investigation

Several of the conclusions of the investigation are

faulty, or based on inaccurate data. Following are a

few examples. The left column is inaccurate data

presented to me, and the right column is an accurate

version.

Information Presented Verified Documentary

at Investigation Evidence

1. Citation 25219011 Receipt number

was paid on 14414164 proves that I

6/27/03 paid Citation 2521901

on 5/16/03

See Exhibit C See Exhibit D

Relevance: The receipt which I saved clearly

shows that the chronology (and conclusions) in the

investigation are not accurate. I had no discussions

18756 EKLUND v. SEATTLE MUNICIPAL COURT
with Mack about whether or not he waived defaults.

However, the investigation alleges he ‘pulled’ the

ticket from collections on 5/19/03, and omits any

record of payment on 5/16/03 (as proved by the

receipt). The receipt I saved for 25219011 shows

that investigation is flawed as to this citation.

2. Citation 23224263 My wife had an

was improperly emergency Cesarian

extended on Section delivery of our

1/31/04;(and a $25 second child on 1/29/04.

penalty ‘erased’ in (I was at the hospital on

the court records) 1/31/04, a Saturday).

Relevance: I had no knowledge of this alleged

transaction. I was on parental leave at the time (and

at the hospital) and it seems very unlikely that anyone tinkered with the court computer on Saturday,

January 31, 2004. Even during pressing financial and

family circumstances I paid my tickets and known

penalties as fast as I could. Citation 23224263, as

presented during the investigation, is no evidence of

wrong-doing on my part.

3. Steven Mack testimony (portrayed as collusive

in Exhibit B) 

(Also: July 7 letter alleges 10 citations)

Several times Mr. Mack clearly states

that I did not request special treatment

and that I went through proper channels

at the court payment window. I never

asked that Steve bend the rules for me,

and if he did, I was unaware.

Relevance: I have been threatened with termination of my job. I paid $348 to the court for $200 in

EKLUND v. SEATTLE MUNICIPAL COURT 18757
citations. I was unaware of improprieties (if any) by

Steven Mack. The investigation alleges 10 citations

(see July 7 letter by Judge Bonner). When I was

interviewed in April, I was questioned about 6 citations. There were only six parking citations, and I

have paid $348 for the original amount of $200. I

believed I paid all fines and penalties.

4. Other (I am prepared orally to discuss additional

inaccuracies at the July 12 hearing).

Procedural Issues (Investigation)

I was interviewed two times (April 22 and June 8).

When confronted with the above inaccuracies, I

requested to provide information, including copies of

documents that would clarify the discrepancies. Mr.

Parcher told me he did not need to see my evidence.

Mr. Parcher asked pointed, leading questions such

as: “did you arrange an off-site meeting to fix your

tickets with Steve (Mack)”. I would respond: “No,

Steve and I have coffee sometimes, but I went to his

window to make the arrangements”. Mr. Parcher

would then twist my comment and conclude: “So

you did try to make special arrangements”. The

interview followed this tone. It was clear that the

purpose of Mr. Parcher’s investigation was not to

seek information, but to build a case against me.

I am aware of the findings of the department’s

investigation of several employees for suspected

FTP of citations. In several cases, there are clear

instances of failure to pay citations, yet no threat of

discipline. In my case, I paid all my fines, including

$148 in penalties. Because of financial pressure in

my family, I requested an extension. I paid all my

fines. It seems very inconsistent that I would be singled out and threatened with termination when other

18758 EKLUND v. SEATTLE MUNICIPAL COURT
employees have neglected their obligations, but face

no discipline.

Retaliation Issues

In October 2003, I was asked by my supervisor,

Gayle Tajima, to research certain issues relating to

court revenues and funding, particularly dealing with

magistrate fine reductions of parking tickets and traffic infractions. This has been an ongoing part of my

work assignment since asked to work with the

Department of Finance on revenue and infraction

related issues stemming from questions DOF had

regarding revenue shortfalls from parking tickets in

2003, despite an increase in citations filed. I completed the research over several weeks or months,

and provided my printed findings and spread sheets

to Ms. Tajima and Mr. Parcher. For several months,

culminating in March 2004, there was much discussion over the reports I had produced. Mr. Parcher,

Ms. Tajima, and I met to review the research I had

produced. Parcher tore up my work in front of me

and demanded that I not make a public record of my

findings, that I not send my findings or related information via e-mail as to not create a public record,

and that I not discuss the information contained in

my reports with anyone outside of the Executive

Leadership Team, the Court Administrator, or the

Presiding Judge. They both instructed me to tell no

one about my findings, to destroy hard copies of my

reports, and stated that they did not want the City

Council or Executive’s offices or staff to find out

about magistrate fine reduction practices. Mr. Parcher specifically stated that “We (the court) have

already enough trouble with the magistrates, we

don’t need it getting out that you (the public) can

request a hearing and have your ticket reduced below

$5.” 

EKLUND v. SEATTLE MUNICIPAL COURT 18759
I also have been working with Gayle Tajima and

Barb Gangwer of the City of Seattle Financial

Department on calculating court revenues and

improving the budget projection process. Ms. Gangwer specifically has asked for the data I researched

regarding the amount of fines that Magistrates have

discounted from tickets and citations. Ms. Tajima

has replied to Ms. Gangwer that ‘the court does not

and cannot produce this information’ and that the

court does not have the ‘resource or ability to report

on that information’. Ms. Tajima knew this was not

true, for I had already researched the issue and provided her and Mr. Parcher with the information that

Ms. Gangwer requested. In discussing our work with

Ms. Gangwer, Gayle specifically instructed me on

multiple occasions to not discuss the magistrate fine

reduction with Ms. Gangwer.

I was concerned that this approach may violate the

law, as well as the ethical standards of the court. I

questioned the consequences of their approach to

withhold information from the Department of

Finance, stating that it would be better to release the

information to them and deal with the budget implications now than to wait and have them find out later

and have to explain why the court did not divulge the

information when it was requested. Their unilateral

response has been that the court does not have an

obligation to share that type of information with the

Department of Finance. Despite their directive to get

rid of my hard copies and minimize any potential

public record regarding these reports, I have kept the

hard copies and also have saved each draft of my

work electronically.

I am aware of RCW 42.41.030 which says that as

an employee of a local government, I have the right

to report to the appropriate person, information con18760 EKLUND v. SEATTLE MUNICIPAL COURT
cerning an alleged improper governmental action.

Two members of the court’s Executive Leadership

Team instructed me to alter the public record and

withhold information from the City’s legislative

department by virtue of the Department of Finance.

Since I produced four reports on the magistrate fine

reductions in late 2003 and early 2004, and identified errors in court generated revenue reports, Mr.

Parcher and Ms. Tajima have treated me with

increasing hostility. I have not received performance

evaluations and raises consistent with my employment agreement with the court.

Even before my knowledge of this investigation,

other members of management have warned me that

Mr. Parcher is out to get my job. I believe that this

so-called ‘investigation’ is motivated by his desire to

remove me from my job in retaliation for my reporting of a potentially illegal and unethical cover-up. It

is my understanding that Mr. Parcher reports to your

honor (the presiding judge). In making this report to

you, I have likely taken the next step upstream in

reporting information concerning an alleged

improper governmental action. Based on Mr. Parcher’s reaction and threats and warnings from coemployees, I have feared that reporting information

regarding court revenue and discounts by Magistrates to Ms. Gangwer or others in the City Financial

Department would result in my immediate dismissal.

With a wife and two small children (ages 6 months

and 5 years). I feel I have been intimidated into

silence.

Mitigating Issues

Attached, please find copies of my only two performance reviews. Both are excellent. Until the conflict with my supervisor, and later Mr. Parcher, over

EKLUND v. SEATTLE MUNICIPAL COURT 18761
concealing information and destroying public documents, I have had an excellent record as an exemplary employee. My research and work reflects

diligence and high standards, as also reflected in my

evaluations. I have been warned by co-employees

that ‘Parcher is out to get you’. The investigation

regarding my citations was biased and contains inaccuracies. At every possible point, the investigator

sought to put me in an unfavorable light, drawing

conclusions that are not supported by the record and

documents. When I offered to present copies of

receipts, etc. Mr. Parcher refused the opportunity. I

am a young father with three others to support. I

have valued my job. I come to work with a positive

attitude and work hard. My record reflects this. To

take away my family’s sole source of support would

crush us. I paid my tickets and the penalties of which

I was aware. Contrary to the picture Mr. Parcher

tries to paint, I did not seek special treatment. I do

not believe I received special treatment different

than a member of the public in similar circumstances

would receive. 

I can learn from this situation. In hindsight, perhaps it would have been wiser to simply mention to

my supervisor that I had made arrangements at the

court window to pay some parking citations over

time. My job is valuable to me. My attitude and performance have reflected this. Even the dispute with

management over whether their directives to conceal

information and destroy evidence was motivated by

a desire to act in an ethical way. I respectfully

request that the court allow me to keep the career

and position I have worked so long to develop. 

Respectfully Submitted,

Bruce Eklund

18762 EKLUND v. SEATTLE MUNICIPAL COURT
On July 29, 2004, Bonner sent this memorandum to

Bruce Eklund:

TO: Bruce Eklund, Strategic Advisor I

FROM: Fred Bonner, Presiding Judge

DATE: July 29, 2004

SUBJECT: Disciplinary Action

The Court recently completed an investigation concerning serious misconduct with regard to how your

monetary obligations owed to the court were handled. You were advised of these findings in a July 7,

2004 memorandum. On July 19, 2004, you were provided an opportunity to respond to the disciplinary

action proposed in that memorandum.

The investigation fact-findings determined that you

involved yourself in a plan to continue your monetary obligations and avoid penalties and that you

benefitted financially from improper adjustments to

your court record. On multiple occasions, your coworker, and friend, revised your court record and

interfered with the routine defaulting and collections

referral of your citations. Specifically, your MCIS

obligation due dates were extended twelve times on

six citations, four of your citations were recalled

from collections and eight default penalties totaling

$190.00 were removed. In all, your colleague took

improper action on ten citations belonging to you.

Your behavior constitutes serious misconduct. You

violated the SMC Code of Conduct, City of Seattle

Code of Ethics, SMC Failure to Appear of Failure to

Pay Policy, SMC Violations of Seattle Municipal

EKLUND v. SEATTLE MUNICIPAL COURT 18763
Court Policy, SMC Information Access Policy, and

SMC Workplace Expectations for Employees.

In response to these allegations, you submitted a

memorandum to the court dated July 12, 2004 and

you provided verbal and written statements at your

July 19, 2004 pre-disciplinary hearing. In your statements you dispute the allegations and contend you

are innocent of wrongdoing. Your position is that

you appropriately sought payment assistance from

Court Compliance, that you requested and believed

you were on a time payment plan and that you were

unaware that your citations were recalled from collections and that your default penalties were

removed. You challenged the finding that your

default penalties had been removed and shared your

belief that you paid some, and possibly all, your

default penalties. Yet, in one of the fact-finding

interviews, you acknowledged that the amount you

ultimately paid for your citations was less than you

had anticipated. You also contend in your statements

that the investigation regarding these matters was

flawed and that information contained in the findings

is inaccurate. 

After carefully reviewing all the facts of this case,

including your July 12, 2004 written statement and

the testimony and written statement provided at your

pre-disciplinary hearing, I am choosing disciplinary

action commensurate with the severity of the misconduct. Therefore, your employment with The

Municipal Court of Seattle is terminated immediately.

You will be paid for your accumulated vacation

hours. Information will be sent to you concerning

COBRA, a program through which you may purchase medical benefits for yourself and eligible fam18764 EKLUND v. SEATTLE MUNICIPAL COURT
ily members. You should contact the Retirement

Office at 386-1292 concerning your retirement

funds.

cc: Yolande E. Williams, Court Administrator

Gayle Tajima, Director of Finance & Administrative Services

Janice Flaagan, Senior Personnel Specialist.

On July 29, 2004, Bonner also wrote Bruce Eklund

as follows:

TO: Bruce Eklund, Strategic Advisor I

FROM: Fred Bonner, Presiding Judge

DATE: July 29, 2004

SUBJECT: Response to Allegations

On July 12, 2004 you submitted a written statement

raising allegations that the Court retaliated against

you for work you performed on magistrate fines.

You claimed that after you shared preliminary data

with two Court directors, they instructed you to

destroy your work, alter a public record and treated

you with hostility. Your July 12th submittal claimed

that you reported a “potentially illegal and unethical

cover-up,” and that a subsequent disciplinary investigation and proposed discipline was motivated by the

directors’ desire to remove you from your job as

retaliation for your presentation data.

Your letter of July 12, 2004 is the first reporting of

any misconduct or wrong doing the Court is aware

of. Since this report follows the Court’s notice to you

of pending discipline, the sequence of events is not

supportive of your claim of retaliation. The statute

EKLUND v. SEATTLE MUNICIPAL COURT 18765
you refer to in your July 12, 2004 letter is superceded by the City’s own codified provisions for

whistleblowing activity at SMC 4.20.810. The

Municipal Code provides protection for reported acts

of misconduct and for cooperating or testifying in

proceedings related to the improper governmental

action alleged. Your report to the Court, after knowledge of pending termination, does not entitle you to

whistleblower protection. The Code does not provide

the same protections for subjective fears of City

employees, related to unreported wrongdoing.

This project was assigned to you at my request and

the results of your work were reported to me. Your

results were shared with the magistrates, and I

requested that this work be continued over the next

few quarters to determine if practices changed over

time. I find it concerning that you would remove

work product of this nature and then present the

Court with a thinly veiled threat of discourse after

being notified of pending termination. Please return

all work materials which you have removed form the

Court no later than August 9, 2004. In conclusion, I

have not found any improper action on the part of

the two directors you identified in your July 12, 2004

letter. The investigation into your mishandling of

court obligations is a separate and unrelated investigation that arose out of an audit of all Court employees. The result of that audit is that court employees

found to have misused their access to Court records

were notified of the findings, and appropriate action

was taken.

cc: Yolande E. Williams, Court Administrator

Gayle Tajima, Director of Finance & Administrative Services

Janice Flaagan, Senior Personnel Specialist.

18766 EKLUND v. SEATTLE MUNICIPAL COURT
Eklund was one of five employees of the Municipal Court

terminated for misconduct in the handling of parking tickets.

In an effort to avoid litigation, each was offered a settlement

under which each would agree to resign and file for unemployment benefits. Eklund declined to settle.

On July 29, 2004, Eklund sent by certified mail a letter to

the Seattle Ethics and Elections Committee setting out his

charges of misconduct by Municipal Court employees.

On August 16, 2004, Eklund met with Wayne Barnett, the

executive director of this commission. Barnett, a distinguished lawyer, advised Eklund that he should direct his retaliation claim to the Office of the Mayor.

On August 26, 2004, Eklund filed a complaint with the

Office of the Mayor of Seattle charging that the Municipal

Court had retaliated against him as a result of his allegations

of improper activity. The Office of the Mayor investigated

and found that the Municipal Court’s investigation of misconduct as to parking tickets had ended in June 2004, with the

conclusion that the five employees including Eklund should

be fired. The investigation concluded that Eklund had been

properly terminated and that he had not shown any retaliatory

action by the Municipal Court. 

On January 6, 2005, Barnett informed Eklund that “After

an extensive and thorough vetting of the issues raised” by

Eklund’s letter Barnett found no issues appropriate for action

by the Ethics and Elections Commission. Barnett advised

Eklund that he could appeal Barnett’s decision to the full

commission.

Eklund made no appeal of either the decision by the

Mayor’s Office or by the Ethics Commission. It is not clear

from what is presented to us whether there were any possible

posttermination proceedings he could or should have invoked.

EKLUND v. SEATTLE MUNICIPAL COURT 18767
The only issues presented to us involve the actions of Judge

Bonner and the pretermination hearing.

Several Seattle newspapers carried stories that five employees of the Municipal Court had been fired for ticket-fixing.

The stories did not identify the employees and noted that the

court would not release their names. 

Eklund experienced difficulties in finding employment

after his termination. His income was substantially reduced.

He believed that his termination was the cause of his difficulties.

PROCEEDINGS

On February 15, 2007, Eklund filed his second amended

complaint against Bonner and the other defendants. Under

“Legal Claims” the complaint asserted:

Eklund may recover based on several legal claims

including breach of contract of employment; wrongful discharge; discharge in violation of public policy

(policies in favor of public disclosure, agency

accountability, whistle blowing, revealing violations

of law, requiring compliance with state statutes, judicial independence and otherwise); whistle blower

laws; violation of and conspiracy to violate the

Washington State Public Disclosure Act (PDA)

including but not limited to refusing to comply with

requests for information made by City officials and

in substance adopted by Eklund, and anticipatory

violations of the PDA; negligence; defamation,

including relating to statements made to the media

and statements made to the public in Eklund’s personnel file which defendants knew was subject to

disclosure and could be and would be released to the

public; invasion of privacy and false light; violation

of state and/or federal constitutional rights to free

18768 EKLUND v. SEATTLE MUNICIPAL COURT
speech, political participation and/or to public

employment and/or requiring proper termination

thereof including termination and publication of

statements in a personnel file available to the public

only with a proper and prior name clearing or

“Loudermill” hearing.

On June 10, 2008, Bonner moved for summary judgment

on the ground of qualified immunity. The district court denied

the motion on September 12, stating that there were disputed

issues of material fact.

Also in the pretrial proceedings the district court reduced

Eklund’s “Legal Claims” to two questions to be put to the

jury: Was Eklund wrongfully terminated by the defendants?

Were his rights to due process violated by the defendants?

The jury answered the first question, No, and the second

question, Yes. It awarded Eklund economic damages of

$210,000, non-economic damages of $100,000, and punitive

damages of $156,000 against Bonner.

On motion of the defendants, the district court eliminated

the economic damages. Bonner renewed an earlier motion for

qualified immunity. The district court denied the motion. The

court stated that “there was no evidence that Bonner had any

personal animosity toward Eklund” but that “there was sufficient evidence for the jury to find that Bonner was biased

against Eklund as a result of Eklund’s accusations against the

SMC. . . . It is not the Court’s role to substitute its view of

the evidence for the jury’s view.”

Bonner appeals the judgment against him. Eklund appeals

the elimination of the economic damages.

ANALYSIS

The standard of review. The question of qualified immunity, which in this case is dispositive, is a legal question,

EKLUND v. SEATTLE MUNICIPAL COURT 18769
reviewed by us de novo. Mueller v. Auker, 576 F.3d 979, 991

(9th Cir. 2009).

[1] Qualified Immunity. Bonner is entitled to qualified

immunity if his “ ‘conduct [did] not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.’ ” See James v. Rowlands, 606 F.3d 646,

650 (9th Cir. 2010) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). Under Pearson v. Callahan, 129 S. Ct. 808,

818 (2009), courts have discretion to grant qualified immunity

if the right at issue was not clearly established at the time,

without deciding whether there was a constitutional violation.

“A right is clearly established if the ‘contours of the right

[are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” James, 606

F.3d at 652 (quoting Saucier v. Katz, 533 U.S. 194, 202

(2001)). Thus, Bonner is entitled to qualified immunity unless

a reasonable person in his position would have believed that

he should have recused himself from presiding at the July 19,

2004 pretermination name-clearing hearing.1 We conclude

that a reasonable person in Bonner’s position would not have

believed that he was constitutionally required to recuse himself.

[2] In his fax of July 12, 2004 to Bonner, Eklund’s counsel

told Bonner that he had a disqualifying conflict of interest: he

had investigated the charges against Eklund, and found them

true, now he was adjudicating them. This assertion of Bonner’s disqualification was a misstatement of established law.

The Supreme Court has made abundantly evident that an

investigator’s investigation and conclusion as to misconduct

does not disqualify the investigator as a judge of the misconduct. Withrow v. Larkin, 421 U.S. 35, 47-50 (1975) (“The

1Because Eklund was an at-will employee, he was entitled only to a

name-clearing hearing, not to a pretermination hearing concerning the discharge itself. See Board of Regents of State Colleges v. Rothe, 408 U.S.

564, 573 & n.12 (1972). 

18770 EKLUND v. SEATTLE MUNICIPAL COURT
contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of

bias in administrative adjudication has a much more difficult

burden of persuasion to carry.”) The bare suggestion that the

two roles conflicted carried no weight. Eklund’s counsel suggested nothing else.

Eklund’s own fax on the same date did not convey any

request that Bonner disqualify himself. The fax did refer to

misconduct in the Municipal Court. The letter did not charge

Bonner with responsibility for this misconduct. Rather, the

thrust of the letter was to alert Bonner to Eklund’s charges so

that Bonner could take these charges into account. Neither

explicitly nor implicitly did Eklund request Bonner to disqualify himself from the hearing.

[3] When Eklund’s counsel sought his disqualification on

patently insufficient grounds, Bonner had no duty to recuse

himself. Bonner was no more required to recuse by Eklund’s

charges bearing on members of the court staff which Eklund

presented as part of his response to the charges against himself. Nothing in Eklund’s fax asserted that he considered Bonner responsible for the misconduct or that he therefore saw

Bonner as incapacitated by a conflict of interest.

[4] If counsel seeks recusal of a judge for conflict of interest and presents patently insufficient reason and the litigant

himself expresses no dissatisfaction with the judge, a reasonable judge still has an obligation of self-examination to be

certain that he harbors no partiality toward or against a party.

A judge must ask, Do I have a pecuniary interest in the matter? Do I have a personal interest? See Withrow, 421 U.S. at

47.

[5] Patently, Judge Bonner had no pecuniary interest.

Whatever effect Eklund’s disclosure might have had on the

Municipal Court budget, Eklund made no allegation and

offered no proof that Bonner himself stood to benefit finanEKLUND v. SEATTLE MUNICIPAL COURT 18771
cially from any particular outcome. Nor did he have a personal interest. He has not been shown to have held any

personal grudge against Eklund or to have had any particular

bias in favor of the accused employees.

[6] What is probable that Bonner did have was a regard for

the reputation of the institution of which he was the chief

judge and administrator. Any judge will have some feeling for

the reputation of his court and resent slander upon it. The

chief is likely to be a little more sensitive. After all, people

will speak of it as “his court.” Nonetheless, this kind of popular association does not create an identity between a court and

its chief judge. A tough-minded judge, indeed any rational

judge, will distinguish between himself and the institutional

system and its various parts and members. Absent extreme

bias, a chief administrator is not disqualified from giving a

hearing to an employee who has made charges against the

employees of the institution but not against the chief personally. A chief judge in Bonner’s position could reasonably

have believed that Bonner was not disabled by bias. He was

therefore entitled in September 2006 to qualified immunity

and dismissal of Eklund’s case against him.

In error, the case went to trial. Counsel for Eklund examining Bonner as a witness focused on the July 29 letter Bonner

had signed. The letter stated concern over Eklund’s “veiled

threat of discourse after being notified of pending termination.” Bonner made plain that he had not written it but he took

responsibility for it. He agreed that “discourse” was probably

a typo for “disclosure.” He explained that what was meant

was disclosure of Eklund’s charges outside the Municipal

Court. Bonner observed that the letter had been drafted years

ago and he was “thinking about something else entirely,” but

that he did regard Eklund’s work as “internal only.” Bonner

further testified that he did not consider Eklund’s threat to disclose when he decided to fire him. Eklund’s counsel then

asked if Bonner knew that Eklund was accusing him of breaking the law if he fired Eklund on account of Eklund’s accusa18772 EKLUND v. SEATTLE MUNICIPAL COURT
tions. “That’s not my understanding,” Bonner replied.

Counsel now phrased Eklund’s July 29 letter as accusations

against “you [Bonner] and your staff” and asked Bonner if he

did not know that Eklund was accusing him of breaking the

law. Bonner answered that he had had no conversation with

Eklund. Counsel then asked if Bonner did not consider that

Eklund’s accusations created a conflict of interest for Bonner,

disqualifying him to hear Eklund’s case. Bonner replied, “No,

I did not.”

[7] This examination of Bonner established that Bonner

did not want Eklund’s accusations to be disclosed outside the

Municipal Court. Despite the phrasing of Eklund’s counsel,

Eklund’s accusations were not against Bonner personally. The

accusations implicated the institution and specific staff members. As the investigations by the Mayor’s Office and the Ethics Commission established, Eklund’s accusations did not

lead to any legal consequences for anyone in the Municipal

Court. What Bonner expressed concern about was not criminal prosecution of himself but bad publicity for his court. His

feelings were institutional, not personal. He was not disqualified as a decisionmaker at Eklund’s hearing. His renewed

motions for qualified immunity should have been granted.

Eklund’s appeal on the issue of economic damages is necessarily foreclosed by this opinion. 

For the reasons stated, the judgment of the district court is

REVERSED and the case is REMANDED for entry of judgment in favor of Bonner.

CANBY, Circuit Judge:

I agree with the analysis set forth in Judge Noonan’s opinion, and I concur in the judgment. 

EKLUND v. SEATTLE MUNICIPAL COURT 18773