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Brunell v. Clinton County
Citation: 334 F. App'x 367Docket: No. 08-3831-cv
Court: Court of Appeals for the Second Circuit; June 8, 2009; Federal Appellate Court
John Brunell appeals a judgment from July 28, 2008, which dismissed his complaint for failure to state a claim. Brunell, appointed Democratic Party Election Commissioner for Clinton County in January 2005 and part-time Tax Assessor since 1989, was terminated from his Election Commissioner role on August 23, 2007. Defendants Rodney Brown and Aan Gibson demanded Brunell's resignation from the Tax Assessor position to retain his role as Election Commissioner, leading to his forced exit from the office. After consulting with an attorney, Brunell resigned from the Tax Assessor position and returned to his Election Commissioner role the next day. The court reviews motions to dismiss under Fed. R. Civ. P. 12(b)(6), accepting all allegations as true and requiring sufficient factual basis for a claim to proceed. Brunell's procedural due process claim under 42 U.S.C. § 1983 was dismissed because the court determined he lacked a protected property interest in the Election Commissioner position. Under New York Election Law § 3-200(4), individuals holding any public office, like Tax Assessor, cannot serve as Election Commissioner. Therefore, Brunell did not have a legitimate claim of entitlement to his position as Election Commissioner, leading to the dismissal of his claim. A county Election Commissioner cannot also serve as a Town Assessor within the same county, as the latter is classified as a public office without exceptions under § 3-200(4) of the New York Real Property Tax Law. Brunell's procedural due process claim was dismissed because he lacked a legitimate entitlement to his position as Election Commissioner while holding the public office of Tax Assessor. Brunell further claimed retaliation for terminating the Deputy Elections Commissioner, alleging this was in response to his lawful actions. However, this claim failed as Brunell did not demonstrate that he engaged in constitutionally protected speech; actions taken in the capacity of official duties do not qualify as protected speech under the First Amendment. Consequently, his claim of retaliation was dismissed. Additionally, Brunell's request for a declaratory judgment regarding the Governor's exclusive right to remove an Election Commissioner is moot since he has retired from his position, eliminating any current interest in the matter. The court affirmed the district court’s judgment based on these findings.