UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41436

MARIAN HILL,

Plaintiff-Appellee,

versus

CITY OF SEVEN POINTS, Et Al.,

Defendants,

CITY OF SEVEN POINTS; TERESA DRUM, Individually and in official capacity; ROGER ALLEN, Individually and in official capacity; C.W. DANIEL, Individually and in official capacity; RANDY WHITEHURST, Individually and in official capacity; ANNIE LONGACRE, Individually and in official capacity; TOMMIE TAYLOR, Individually and in official capacity; DON ALLSUP, Individually and in official capacity; MARY REID, Individually and in official capacity; MARIE DAVIS, Individually and in official capacity; LYNN CLOWDUS, Individually and in official capacity; FOREST EVERITT, Individually and in official capacity; CLAUDETT ALLSUP, Individually and in official capacity; GERALD TAYLOR, Individually and in official capacity,

Defendants-Appellants. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas (6:98-CV-687) _________________________________________________________________

January 17, 2002 Before BARKSDALE and STEWART, Circuit Judges, and ROSENTHAL,

District Judge.1

1 United States District Judge for the Southern District of Texas, sitting by designation. RHESA HAWKINS BARKSDALE, Circuit Judge:2

For this interlocutory appeal from the summary judgment

denials of, inter alia, prosecutorial, qualified, and sovereign

immunity, at issue is: (1) whether jurisdiction exists to review

each immunity denial; and (2) if it does exist, whether there is

immunity from Plaintiff’s claims that (a) her selective prosecution

and a zoning variance denial denied her equal protection; (b) the

variance denial, jury rigging in her criminal trial, and a conflict

of interest of the prosecutor in that trial denied her due process;

and (c) Defendants conspired to effect these claimed civil rights

violations. We AFFIRM in Part, REVERSE in Part, and REMAND.

I.

This action is based on the charge by Plaintiff Marian Hill

(Hill), the former Mayor of Defendant City of Seven Points, Texas,

that the individual Defendants, all but one of whom were city

officials, conspired to “run her out of town”, resulting in her

removal from office and in criminal convictions for zoning

violations. (As discussed infra, the convictions, while on appeal,

were dismissed recently.) The following underlying facts are

primarily based on Hill’s affidavit in opposition to summary

judgment (affidavit). As discussed infra, for purposes of this

2 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

2 interlocutory appeal, we must assume the facts stated in her

affidavit are true.

In May 1997, Hill’s former husband, Charles Hill, represented

by the law firm of Drum and Waldie, filed for divorce; shortly

thereafter, he attended meetings during which he and Defendant

Judge Ronald Waldie, Defendant City Prosecutor Teresa Drum,

Defendant Chief of Police C.W. Daniel, and Defendant City Council

members formulated the above described scheme.

Pending the divorce, a temporary order allowed Hill to reside

in community property near the marital residence. On 12 November

1997, Hill applied to the Defendant City’s Board of Adjustments for

a zoning variance for that property. The variance was requested

because she was in violation of City Ordinance 125, the property

being zoned only for business use.

Persons who lived within 200 feet of the property received

notice of the variance application; and all of the responses by

surrounding landowners were positive, except that of Charles Hill,

who lived outside that radius. The Board denied Hill’s request,

but instructed her to provide documentation of the temporary order

authorizing her living in the property.

Despite Hill’s complying with this request, the Board informed

her it would not reconsider her application until her divorce was

final. Hill asserts (but offered no evidence, as discussed infra)

3 that no one has ever been denied a variance to live in property

zoned only for business use.

On 17 November 1997, five days after Hill applied for the

variance, the City Council removed Hill as Mayor because of (1) her

zoning violation and (2) purchasing matters concerning a copy

machine lease and a pager. Hill did not appeal her removal.

Instead, she sought a writ of mandamus in state court. The court

denied relief, ruling: the removal-decision was not arbitrary and

capricious; the City Council properly conducted the removal

proceeding; and Hill was not deprived of due process under either

the Texas or United States Constitution. Hill did not appeal that

denial.

On 2 February 1998, Defendant Roger Allen, Building and Code

Inspector for the Defendant City, cited Hill for several Ordinance

125 violations. Approximately two weeks later, on 18 February,

Defendant Police Chief Daniel filed 98 complaints against Hill for

living in a business zone; approximately two months later, on 16

April, Allen filed 98 amended complaints for the same violation.

No person has ever been prosecuted for violating Ordinance 125; and

before, during, and after Hill was cited, at least 12 others,

including Defendant City Council member Randy Whitehurst, who lived

next to the property in question, were also residing in the same

business zone in violation of Ordinance 125, but were not

prosecuted.

4 Hill’s trial for the first ordinance violations began on 23

March 1998 (prior to the 16 April amended complaints), with Drum as

prosecutor for the City and Ronald Waldie as municipal judge. Hill

requested that Judge Waldie recuse himself because the Judge: was

a member of the law firm that represented Charles Hill in the

Hills’ divorce proceeding; and had represented him in an earlier

divorce. Judge Waldie denied the request. Hill was convicted and

fined $1,038 despite the ordinance’s limiting the fine to $200.

The remaining violations were consolidated, with a second

trial beginning on 17 August 1998. Before trial, Charles Hill,

Judge Waldie, Drum, Police Chief Daniel, Council member Whitehurst,

and other City Council members pre-selected a jury list for the

trial, rather than employing the usual random method (jury

rigging). The list included spouses and relatives of Defendants

and members of the Board of Adjustments. When one of the potential

jurors sought to be excused from jury duty, Judge Waldie urged the

prospective juror to stay so the juror could “get back at Marian”.

(“Marian” is Hill’s first name.)

After trial began, Judge Waldie declared a mistrial; according

to Defendants, Hill elected to proceed without a jury. Judge

Waldie found her guilty and fined her $13,700. Hill appealed her

convictions. According to the parties for the appeal at hand, both

criminal actions were dismissed on 4 October 2001 on motion of the

prosecution, two days after this case was argued here.

5 Hill filed this action against Charles Hill, the City, and the

following persons in their official and individual capacities:

Judge Waldie; City Prosecutor Drum; Police Chief Daniel; Building

and Code Inspector Allen; City Council members Whitehurst, Annie

Longacre, Tommy Taylor, Gerald Taylor, and Don Allsup; and Board of

Adjustments members Mary Reid, Lynn Clowdus, Forest Everitt, Marie

Davis, and Claudett Allsup. Under

, Hill claimed

violations of her rights under the Fourth, Fifth, Seventh, and

Fourteenth Amendments to the United States Constitution. And, as

discussed infra, she claimed a conspiracy among Defendants to carry

out these claimed civil rights violations. (Hill also presented

state law claims for intentional infliction of emotional distress,

negligence, and malicious abuse of process. In her amended

complaint, however, Hill did not assert these claims.)

This action was referred to a magistrate judge. Defendants

moved for summary judgment, claiming, inter alia, judicial,

prosecutorial, qualified, and sovereign immunity.

Summary judgment was granted Judge Waldie on the basis of

judicial immunity. Hill’s claims against Judge Waldie were

severed, resulting in a final judgment in his favor. Summary

judgment was denied on the City’s sovereign immunity claim. The

district court concluded genuine issues of material fact exist on

whether Defendants acted pursuant to an official policy or custom

of the City.

6 Summary judgment was denied on Drum’s prosecutorial immunity

claim. The district court concluded a genuine issue of material

fact exists on whether she selectively prosecuted Hill.

And, summary judgment was denied on the individual Defendants’

qualified immunity claim. The district court concluded: Hill had

alleged the violation of clearly established constitutional rights;

and, genuine issues of material fact exist on whether Defendants’

conduct was objectively reasonable in the light of clearly

established law.

As noted, Judge Waldie was dismissed, with the claims against

him severed. The remaining Defendants, with the exception of

Charles Hill, appealed. Our court remanded, because it was not

clear we had jurisdiction, the magistrate judge’s referral order

not having been signed by the district judge. See Hill v. City of

Seven Points,

(5th Cir. 2000).

On remand, the district court again referred the case to the

magistrate judge. Defendants’ motion for reconsideration of the

summary judgment ruling was denied, the magistrate judge adopting

his previous ruling.

II.

The Appellant Defendants (Charles Hill is not an Appellant)

again bring an interlocutory appeal, maintaining the district court

erred: in denying prosecutorial, qualified, and sovereign

immunity; in concluding a genuine issue of material fact exists for

7 Hill’s conspiracy claim; and in denying Defendants’ motion to

strike Hill’s affidavit.

A summary judgment ruling is reviewed de novo, applying the

identical standard used by the district court. E.g., Stewart v.

Murphy,

(5th Cir.), cert. denied,

(1999). Judgment should be granted if “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law”. FED. R. CIV. P. 56(c).

“We view the pleadings and summary judgment evidence in the

light most favorable to the nonmovant.” Stewart,

.

The non-movant, however, “may not rest upon the mere allegations or

denials of the adverse party’s pleading, but the [non-movant’s]

response, by affidavits or as otherwise provided in this rule, must

set forth [identify] specific facts [evidence] showing there is a

genuine issue for trial”. FED. R. CIV. P. 56(e) (emphasis added).

As stated in Rule 56(e), those “specific facts” — summary

judgment evidence — must be presented through the vehicles for

doing so identified in Rule 56(c), such as affidavits or

depositions, and must be contained in the summary judgment record.

E.g., Jones v. Sheehan, Young, & Culp, P.C.,

(5th Cir. 1996) (“the non-movant must go beyond the pleadings and

by [his] own affidavits, or by the depositions, answers to

8 interrogatories, and admissions on file, designate specific facts

showing that there is a genuine issue for trial”) (internal

quotation marks omitted; alteration in original; emphasis added;

quoting Celotex Corp. v. Catrett,

(1986)).

Accordingly, as discussed infra, statements in a response in

opposition to summary judgment do not constitute “evidence” for

summary judgment purposes. See, e.g., Skotak v. Tenneco Resins,

Inc.,

(5th Cir.) (in opposing a motion for

summary judgment, the non-movant “must, either by submitting

opposing evidentiary documents or by referring to evidentiary

documents already in the record, set out specific facts showing

that a genuine issue exists”) (emphasis added and emphasis in

original; internal quotation marks omitted), cert. denied,

(1992).

A.

Generally, a summary judgment denial is not a final order

vesting appellate jurisdiction under

. See, e.g.,

Turner v. Houma Mun. Fire & Police Civil Serv. Bd.,

(5th Cir. 2000). Therefore, before the immunity issues are

considered, jurisdiction for this interlocutory appeal must be

addressed. As discussed below: jurisdiction exists to consider

the denial of prosecutorial and qualified, but not sovereign,

immunity, with our review being limited; and jurisdiction also

exists to consider the related conspiracy and evidentiary issues.

9 1.

“An exception to th[e] rule [that we lack jurisdiction over a

summary judgment denial] exists when the summary judgment motion is

premised on a claim of absolute or qualified immunity”.

at 482

(citing Mitchell v. Forsyth,

(1985)). This

exception is grounded in the collateral order doctrine, which

permits appeal of a non-final order if it is “within ‘that small

class which finally determine claims of right separable from, and

collateral to, rights asserted in the action, too important to be

denied review and too independent of the cause itself to require

that appellate consideration be deferred until the whole case is

adjudicated’”. Mitchell,

-25 (quoting Cohen v.

Beneficial Indus. Loan Corp.,

(1949)). Such

appellate review is premised upon the reality that, in some

instances, if an order is not reviewed before the issuance of a

final judgment, the practicality of reviewing that order is lost.

Mitchell,

; see Stack v. Boyle,

(1951).

Prosecutorial immunity is a form of absolute immunity. See

Imbler v. Pachtman,

(1976); Prince v. Wallace,

(5th Cir. 1978). Prior to final judgment, we

can review a prosecutorial immunity denial because “the essence of

absolute immunity is its possessor’s entitlement not to have to

answer for his conduct in a civil damages action”. Mitchell, 472

10 U.S. at 525. Similarly, jurisdiction to review a qualified

immunity denial is based on “the recognition that qualified

immunity is in part an entitlement not to be forced to litigate the

consequences of official conduct [and] that a claim of immunity is

conceptually distinct from the merits of the plaintiff’s claim that

his rights have been violated”. Id. at 527-28.

Along this line, an absolute immunity denial is appealable

before final judgment only if the appeal is “based on issues of law

and concern[s] only [the] application of established legal

principles”. Turner,

(internal quotation marks

omitted); see Skelton v. Camp,

(5th Cir. 2000)

(“We have jurisdiction over an interlocutory appeal of the denial

of summary judgment involving absolute immunity where there are no

material facts in dispute.”).

Likewise, the “denial of summary judgment on qualified

immunity is ... immediately appealable, even when a genuine issue

of material fact exists, when the order determines a question of

law”. Hare v. City of Corinth, Miss.,

(5th Cir.

1998). Accordingly, for qualified immunity, “the appealable issue

is a purely legal one: whether the facts alleged (by the

plaintiff, or, in some cases, the defendant) support a claim of

violation of clearly established law”. Mitchell,

n.9. “Assumed facts are treated as undisputed facts in this

analysis .... [and] we retain interlocutory jurisdiction to ‘take,

11 as given, the facts that the district court assumed when it denied

summary judgment,’ and to determine whether those facts are

sufficient to state a claim under clearly established law”.

Coleman v. Houston Indep. Sch. Dist.,

(5th Cir.

1997) (citation omitted) (quoting Johnson v. Jones,

(1995)); see Kelly v. Foti,

(5th Cir. 1996)

(“Denial of summary judgment on the ground of qualified immunity is

immediately appealable to the extent that the question on appeal is

whether the undisputed facts amount to a violation of clearly

established law.”).

In sum, our jurisdiction over an interlocutory appeal from a

summary judgment denial of absolute or qualified immunity is

limited to one which “turns upon an issue of law and not of fact”.

Stem v. Ahearn,

(5th Cir. 1990), cert. denied,

(1991). Therefore, we do not review whether the issues

of fact are “genuine”; we do review whether they are “material”.

See Lemoine v. New Horizons Ranch & Ctr., Inc.,

, 633-

34 (5th Cir. 1999) (prior to final judgment, no appellate

jurisdiction for whether issue of fact is genuine; court of appeals

has jurisdiction to review whether fact issue is material, this

being a legal issue). See, e.g., Jones v. Collins,

(5th Cir. 1998) (summary judgment denial not immediately

appealable where movant “merely disputes the district court’s

determination that the nonmoving party may be able to prove at

12 trial a fact that is material to the appellant’s entitlement to

qualified immunity”); Naylor v. State of La. Dep’t of Corr.,

(5th Cir. 1997) (court of appeals has “jurisdiction

over law-based denials of qualified immunity, but [does] not have

jurisdiction over a genuine-issue-of-fact-based denial”).

2.

Jurisdiction is lacking over the sovereign immunity denial.

Relying upon Swint v. Chambers County Comm’n,

(1995),

Defendants maintain our jurisdiction over the prosecutorial and

qualified immunity denials provides “pendent” jurisdiction over the

sovereign immunity denial; as discussed infra, they claim the

issues are “inextricably intertwined”. In Swint, after a raid by

city and county law enforcement entities, plaintiffs filed a § 1983

action against the city and county and their officials. Defendants

moved for summary judgment, the individuals claiming qualified

immunity; the city and county, sovereign immunity. The city

contended it could not be held liable under a respondeat superior

theory of liability for a § 1983 violation, see Monell v. Dep’t of

Soc. Servs.,

(1978), while the county maintained

it had no § 1983 liability because its sheriff was not a county

policy maker.

The district court denied qualified and sovereign immunity,

concluding, inter alia: the city had failed to allege that the

police chief was not a city policy maker; and the court was

13 “‘persuaded ... that [the sheriff] may have been the final

decision-maker for the County’”. Swint,

.

The Eleventh Circuit held the qualified immunity denial

appealable. It held the sovereign immunity denial not appealable

as a collateral order, but that, for the county, it was appropriate

to exercise “pendent” appellate jurisdiction over the conclusion

that the sheriff was a county policy-maker. On the other hand, the

court declined to exercise such jurisdiction over the sovereign

immunity denial for the city, because the district court had not

ruled on whether the police chief was a city policy-maker.

The Supreme Court reversed, holding the Eleventh Circuit did

not have jurisdiction to consider sovereign immunity. The Court

reasoned that, unlike qualified immunity, sovereign immunity is not

immediately appealable under the collateral order doctrine because

“an official’s qualified immunity is ‘an immunity from suit rather

than a mere defense to liability; and like absolute immunity, it is

effectively lost if a case is erroneously permitted to go to

trial’”.

(emphasis in original) (quoting Mitchell,

). The Court then determined that the sheriff’s not-a-

county-policy-maker assertion was not an immunity from suit, but,

rather, a “defense to liability”. Id. at 43 (internal quotation

marks omitted).

Regarding the Eleventh Circuit’s exercising pendent

jurisdiction, the Court rejected it, on the basis that: 28 U.S.C.

14 § 1292(b) requires district and circuit court approval of certain

types of interlocutory appeals; and if a circuit court considers an

issue that does not satisfy the collateral order doctrine, “the

two-tiered arrangement § 1292(b) mandates would be severely

undermined” because approval of the interlocutory appeal by the

district court would be irrelevant. Id. at 47.3

The Court, however, left open the possibility that, where a

district court’s summary judgment denial of sovereign immunity is

“inextricably intertwined with that court’s decision to deny the

individual defendants’ qualified immunity motions, or that review

of the former decision was necessary to ensure meaningful review of

the latter”, jurisdiction may exist. Id. at 51. Nevertheless, the

Court determined that such was not the situation in Swint, because

qualified immunity depended upon whether the individual defendants

violated a clearly established constitutional right, and sovereign

immunity turned on “the allocation of law enforcement power in

Alabama”. Id.

3 Of course, the result is not the same with respect to a State’s assertion of Eleventh Amendment immunity. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

(1993), holding: denial of Eleventh Amendment immunity is a conclusive determination that a State has no right not to be subjected to suit in federal court; and the value of Eleventh Amendment immunity is lost if a State is required to stand trial.

. Furthermore, the Court reasoned that a claim of Eleventh Amendment immunity implicates a fundamental constitutional protection, the resolution of which generally has no relationship to the merits of the underlying action.

15 Accordingly, Defendants assert that the sovereign immunity

issue is “inextricably intertwined” with that for qualified

immunity. In considering whether qualified and sovereign immunity

defenses are so intertwined, our court has looked to whether each

claim has “unique elements and relevant facts” and was considered

separately by the district court. Gros v. City of Grand Prairie,

Tex.,

(5th Cir. 2000).

For example, qualified immunity for the individual Defendants

turns on whether Hill has alleged the violation of a clearly

established constitutional right and whether Defendants’ conduct

was objectively unreasonable in the light of clearly established

law. See Harlow v. Fitzgerald,

(1982).

Sovereign immunity, however, turns on whether Hill has established

a constitutional deprivation resulting from an official policy or

custom of the City. See Monell,

. Defendants have

not demonstrated how, in this case, the resolution of the issues

regarding qualified and sovereign immunity are intertwined, much

less “inextricably” intertwined. In addition, the district court

delineated consideration of qualified immunity from sovereign

immunity.

Furthermore, our court has held that such pendent jurisdiction

should be “exercised only in rare and unique circumstances”. Gros,

(internal quotation marks omitted); see Woods v.

Smith,

, 1166 n.29 (5th Cir. 1995), cert. denied, 516

(1996). Defendants have not addressed, much less

demonstrated, how this condition is met. See Woods,

n.29 (“defendants have not advanced reasons for review more

compelling than those rejected by the Court in Swint”).

Accordingly, we lack jurisdiction over the sovereign immunity

denial. Declining to exercise such jurisdiction concurrently with

considering qualified and prosecutorial immunity will not defeat

totally the purpose of prosecutorial and qualified immunity; the

existence of sovereign immunity vel non does not determine whether

the other Defendants, in their individual capacities, will be

subjected to trial, but instead determines whether the City and the

other Defendants, in their official capacities, will. Compare

Morin v. Caire,

(5th Cir. 1996) (court reviewed

district court’s rulings on state law claims along with its review

of the denial of qualified immunity as district court’s state law

rulings would subject the defendants, individually, to trial,

defeating the purpose of qualified immunity).

3.

To determine whether we have jurisdiction over the qualified

immunity denial for the conspiracy claim, we must first determine

the type of claim presented. Hill cites

(conspiracy to interfere with civil rights) in the jurisdiction

section of her amended complaint; but, in the portion discussing

the conspiracy, she cites § 1983, not § 1985. In addition, in her

17 response in opposition to summary judgment, she terms this a

“section 1983 conspiracy claim”. Accordingly, Hill asserts a

conspiracy claim under § 1983, not § 1985.

In Pfannstiel v. City of Marion,

(5th

Cir. 1990), abrogated on other grounds, Martin v. Thomas,

(5th Cir. 1992), our court considered how qualified

immunity bears on a § 1983 conspiracy claim, noting that the claim

is simply “the legal mechanism through which to impose liability on

each and all of the Defendants without regard to the person doing

the particular act”. Id. at 1187. Accordingly, our court was

faced with “whether defendants who are entitled to assert qualified

immunity may be personally liable based on a section 1983

conspiracy theory when the state action alleged to have violated

section 1983 has been determined to be objectively reasonable in

[the] light of clearly established law”. Id.

Our court held: “In a section 1983 action claiming that

plaintiff was injured by state action as the result of a conspiracy

which includes private persons, the defense is still available to

the qualifiedly immune actor.” Id. Pfannstiel was, as here, an

interlocutory appeal from a qualified immunity denial; and our

court ruled that, in reviewing such denial regarding conspiracy, a

court should “first ... determine the objective reasonableness of

the state action which is alleged to have caused harm to the

plaintiff”. Id. If the action was not objectively reasonable, a

18 court should only then “look to whether the officer’s actions were

taken pursuant to a conspiracy”.

In Hale v. Townley,

(5th Cir. 1995), another

interlocutory appeal from a qualified immunity denial, our court,

after recognizing the Pfannstiel holding, held: where all

defendants were entitled to qualified immunity from the underlying

§ 1983 claims, “the conspiracy claim [was] not actionable”. Id. at

920-21. Accordingly, our court reversed the qualified immunity

denial for the § 1983 conspiracy claims. Id. at 921. See

Rodriguez v. Neeley,

(5th Cir. 1999)

(reversing, on interlocutory appeal, a qualified immunity denial

from a § 1983 conspiracy claim).

Under the holding in Hale, Defendants are entitled to

qualified immunity from the § 1983 conspiracy claim if they are

entitled to qualified immunity from the underlying § 1983 claims.

Therefore, we have jurisdiction to consider the qualified immunity

denial for Hill’s § 1983 conspiracy claim. Again, our jurisdiction

extends only to the extent that the denial turns on an issue of law

and not one of fact. See Hare,

.

4.

As for jurisdiction vel non over the evidentiary ruling on

Hill’s affidavit, Mersch v. City of Dallas, Tex.,

(5th Cir. 2000), likewise involved an interlocutory appeal

of a qualified immunity denial where an evidentiary ruling was

19 challenged. There, the district court admitted the plaintiff’s

post-hypnosis deposition testimony, the only evidence linking the

defendants to her injuries. In the deposition, the plaintiff

recounted events she “remembered” only by virtue of having

undergone hypnosis.

Regarding jurisdiction over the evidentiary issue, our court

stated:

[W]e must ascertain whether [the plaintiff’s] post-hypnosis testimony embodies admissible facts at all. This is because Rule 56 states that a court may consider only admissible evidence in ruling on a summary judgment motion. Where, as here, the admissibility of particular evidence is critical to a summary judgment founded on qualified immunity, this court has not hesitated to review the admissibility of the evidence on appeal.

(internal citations omitted; emphasis added). For this

proposition, Mersch cited Hayter v. City of Mount Vernon,

(5th Cir. 1998), which held, on interlocutory appeal of

a qualified immunity denial, that the district court did not err in

admitting an affidavit.

Accordingly, we have jurisdiction over Defendants’ appeal of

the admission of Hill’s affidavit only to the extent the affidavit

was “critical” to the qualified immunity denial. Our review of the

district court’s opinion reveals that it relied heavily upon Hill’s

statements in her affidavit. For example, it is critical to her

selective prosecution claim because it was the only evidence that

no other person had been prosecuted for an Ordinance 125 violation.

20 Because the affidavit was critical to the immunity denials, there

is jurisdiction over Defendants’ appeal from the denial of their

motion to strike the affidavit.

B.

The evidentiary issue regarding Hill’s affidavit is a gateway

to those on immunity. Defendants claim that a “quick reading of

[the affidavit] shows that it is filled with hearsay, speculation,

conclusory statements, and opinions which the affiant is not

qualified to render.” “For our de novo review of a summary

judgment, we still apply the manifest-error standard of review to

the district court’s evidentiary rulings.” Love v. Nat’l Med.

Enters.,

(5th Cir. 2000); see Mersch,

; Hayter,

.

In their initial brief, Defendants do not identify the

statements to which they object or why any specific statements are

not admissible. Where an issue is not sufficiently briefed, it is

considered waived. E.g., McKethan v. Tex. Farm Bureau,

, 739 n.9 (5th Cir. 1993), cert. denied,

(1994).

In an attempt to remedy this failure, Defendants state in

their reply brief that they “stand on their motion to strike” filed

in district court. It goes without saying that this attempt is not

sufficient; “[a]n appellant abandons all issues not raised and

argued in its initial brief on appeal”. Webb v. Investacorp, Inc.,

, 257 n.2 (5th Cir. 1996) (internal quotation marks

21 omitted; alteration in original; first emphasis added). Moreover,

no authority need be cited for the rule that, on appeal, a party

cannot simply reference positions taken in district court; they

must be briefed here.

C.

A prosecutor is entitled to absolute immunity for acts

occurring within the scope of her duties as prosecutor. Imbler,

. This includes her “initiating prosecution and

carrying [a] criminal case through the judicial process”. Young v.

Biggers,

(5th Cir. 1991); see Beck v. Tex. State

Bd. of Dental Exam’rs,

, 637 (5th Cir.) (prosecutor is

absolutely immune for initiation and pursuit of prosecution or when

“conduct is ‘intimately associated with the judicial phase of the

criminal process’”), cert. denied,

(2000).

Accordingly, as long as the challenged actions are within this

scope, immunity attaches, even where the prosecutor acts

“maliciously, wantonly or negligently”. Rykers v. Alford,

(5th Cir. 1987) (internal quotation marks omitted); see

also Kerr v. Lyford,

(5th Cir. 1999)

(prosecutorial immunity extends even to an action that “‘was in

error, was done maliciously, or was in excess of his authority’”).

In assessing whether Drum’s actions fall within her duties as

prosecutor, we look to “‘the nature of the function performed, not

the identity of the actor who performed it’”. Thomas v. City of

F.3d 358, 362 (5th Cir. 1999) (quoting Imbler,

).

1.

For the selective prosecution claim, the prosecutorial

immunity denial was based on the existence of genuine issues of

material fact. As noted, we do not review the genuineness dispute,

only whether such facts are material. In other words, taking

Hill’s selective prosecution factual allegations as true, we must

determine whether Drum is entitled to immunity as a matter of law.

As discussed earlier, Drum is entitled to absolute immunity

for her ultimate decision to prosecute Hill and for continuing that

prosecution. The prosecution of one, but not another, person for

a particular crime, obviously, implicates the decision to initiate

the prosecution against that defendant, as well as the decision to

continue to press the prosecution. Accordingly, any selective

prosecution would have occurred within the scope of Drum’s duties

as prosecutor and, therefore, she is absolutely immune in her

individual, but not official, capacity from Hill’s selective

prosecution claim. See Burge v. Parish of St. Tammany,

(5th Cir. 1999) (prosecutorial immunity not available

in official capacity law suit against prosecutor).

2.

Drum maintains that “every action of the prosecutor challenged

... in the [district court] was within the scope of her duties of

23 prosecutor”. Although the district court denied Drum prosecutorial

immunity on the selective prosecution claim, it did not rule on

such immunity from any of Hill’s other claims.

For those other claims over which we have jurisdiction, only

two implicate Drum’s personal involvement; both involve due

process. The first claim concerns Drum’s serving as prosecutor and

Charles Hill’s divorce attorney, as well as her practicing law with

Judge Waldie (multi-capacity role); the second claim is that Drum

was involved in the alleged jury rigging. Accordingly, we must

determine whether these alleged actions occurred within the scope

of Drum’s prosecutorial duties.

a.

In regard to Drum’s multi-capacity role, our court has

considered whether a prosecutor’s conflict of interest can prevent

prosecutorial immunity in the context of a § 1983 claim. Brummett

v. Camble,

(5th Cir. 1991), cert. denied,

(1992). The Brummett plaintiff had been charged with removing

property with the intent to hinder a bank’s enforcing its security

interest. The charges were dismissed; and, among others, the

county prosecutors were sued for malicious prosecution. In

contesting prosecutorial immunity, the plaintiff maintained that,

because the prosecutors were stockholders, and in one case a board

member, of the bank, a conflict of interest defeated immunity.

24 This contention was rejected. To allow a prosecutor’s

conflict of interest to defeat prosecutorial immunity would defeat

the purpose for such immunity, because it is granted “to avoid

deflecting the prosecutor’s energies from his public duties and to

encourage the independent exercise of judgment required by his

office”. Id. at 1181 (citing Imbler,

).

Accordingly, Drum is entitled to absolute immunity in her

individual capacity for this due process claim. It is only because

Drum served as prosecutor that such a claim arguably arises.

Therefore, the claim is predicated upon her service — and thus her

acts — as prosecutor, for which she is immune.

b.

At issue next is whether Drum’s participation in the claimed

jury rigging likewise occurred within the scope of her

prosecutorial duties. Again, “absolute immunity is justified and

defined by the governmental functions it protects and serves, not

by the motives with which a particular officer performs those

functions”. Brummett,

. Therefore, we must

determine whether Drum was performing the functions of a prosecutor

during the jury rigging. This depends upon whether the challenged

conduct is “intimately associated with the judicial phase of the

criminal process”.

(internal quotation marks omitted).

While not in the context of a prosecutor’s participation in

formulating a list of pre-selected jurors, this court has

25 considered whether a prosecutor had absolute immunity for allegedly

altering a trial transcript. See Slavin v. Curry,

(5th Cir. 1978), overruled on other grounds, Sparks v.

Duval County Ranch Co., Inc.,

, 978 & n.2 (5th Cir.

1979), cert. denied,

(1980). In that § 1983 action,

the plaintiff claimed he had been framed in a prosecution for

indecency with a child. When the plaintiff appealed his

conviction, the prosecutor allegedly participated in the alteration

of the trial transcript “to reflect a stronger case for the

prosecution and to delete testimony favorable to” the plaintiff.

Slavin,

. Despite the alleged alterations, the

plaintiff’s conviction was vacated due to a flawed indictment.

In the ensuing § 1983 action, the court concluded that, while

the prosecutor was entitled to absolute immunity concerning his

presentation of evidence to the jury and his request that the

plaintiff’s bond be cancelled, the prosecutor was not entitled to

immunity concerning the alleged transcript-alteration because a

prosecutor’s duties do not extend to “supervision of the trial

transcript”. Id. at 1264.

This claim is analogous to Slavin; prosecutorial duties do not

extend to circumventing the random selection of jurors in order to

assist in having a jury favorable to the prosecution. Accordingly,

Drum is not entitled to prosecutorial immunity for this due process

claim.

26 D.

Whether the individual Defendants are entitled to qualified

immunity is decided pursuant to a well-established two step

analysis. See, e.g., Cozzo v. Tangipahoa Parish Council-President

Gov’t,

(5th Cir. 2001); Bazan v. Hidalgo County,

(5th Cir. 2001); Hare,

; Spann v.

Rainey,

(5th Cir. 1993). First, has Hill

“alleged a violation of a clearly established constitutional

right”? Hare,

. If so, was Defendants’ “conduct

... objectively unreasonable in the light of the clearly

established law at the time of the incident”?

Hill contends that the following conduct violated her

constitutional rights: (1) Defendants’ participation in her

selective prosecution denied her equal protection; (2) the Board of

Adjustments’ denial of, and failure to reconsider, her variance

request denied her equal protection; (3) such conduct by the Board

denied her due process because it deprived her of a property

interest; (4) the jury rigging by Prosecutor Drum, Police Chief

Daniel, Council member Whitehurst, and other Council members denied

her due process; and (5) Drum’s multi-capacity role denied her due

process.

Defendants originally contended that any claim based on Hill’s

criminal trials was barred by Heck v. Humphrey,

, 486-

87 (1994), because neither of her convictions had been invalidated.

27 This assertion implicates Hill’s allegations concerning selective

prosecution, the jury list, and Drum’s multi-capacity. Heck,

however, has no bearing on resolving these issues. As noted, while

Hill’s appeal of the convictions was pending, the charges were

dismissed at the request of the prosecution, two days after oral

argument here.

Along this line, Defendants contend that any attack by Hill on

her removal from office is barred by res judicata and collateral

estoppel, because her state court challenge to her removal failed.

But, as Hill notes, none of her claims are based on that removal.

1.

Hill maintains Defendants selectively prosecuted her for her

zoning violations. A selective prosecution claim is premised upon

denial of equal protection. See Wayte v. United States,

(1985) (“It is appropriate to judge selective prosecution

claims according to ordinary equal protection standards.”); Oyler

v. Boles,

(1962) (claim that law imposing

mandatory duty upon prosecutors to seek a more severe penalty

against recidivists was only applied in minority of cases

implicated claimant’s equal protection rights).4

4 Hill states in her amended complaint that the selective prosecution claim arises under “the equal protection component of the Due Process Clause of the Fifth Amendment”. Perhaps Hill confuses her situation with that in Wayte v. United States,

, 608 & n.9 (1985), where selective prosecution was asserted against the federal government, thus implicating the equal protection component of the due process clause of the Fifth

28 To prove selective prosecution, a criminal defendant must

show: “first, that others similarly situated generally have not

been prosecuted; and second, that the Government’s prosecution of

him is selective, invidious, in bad faith or based on impermissible

considerations such as race, religion, or his exercise of

constitutional rights”. United States v. Kahl,

(5th Cir. 1978); see Wayte,

(“the decision to

prosecute may not be deliberately based on an unjustifiable

standard such as race, religion, or other arbitrary classification,

including the exercise of protected statutory and constitutional

rights” (internal citations and quotation marks omitted)); United

States v. Lawrence,

(5th Cir. 1999) (same),

cert. denied,

(2000). The district court ruled that

Hill had presented evidence she was prosecuted while others

similarly situated were not. As discussed, under our limited

review, we must accept this evidence as true.

Defendants maintain they are entitled to qualified immunity

because Hill has not alleged selective prosecution based on an

improper consideration such as race, religion, or the exercise of

constitutional or statutory rights. Hill responds that, to the

extent her selective prosecution claim must be analyzed as an equal

Amendment, a component recognized by Bolling v. Sharpe,

(1954). Because Hill’s § 1983 selective prosecution claim concerns state actors, it arises instead under the equal protection clause of the Fourteenth Amendment.

29 protection claim, it can be grounded in Defendants’ personal

vindictiveness. Hill acknowledges that neither the Supreme Court

nor this court has decided whether a selective prosecution claim

may be premised solely on that factor.

In Bryan v. City of Madison, Miss.,

(5th Cir.

2000), cert. denied,

, our court: acknowledged the

Seventh Circuit’s recognition of a selective prosecution claim

based solely upon personal vindictiveness, see Esmail v. Macrane,

(7th Cir. 1995); and observed that our circuit has

“never specifically addressed whether such a motive would be enough

to support an equal protection claim without some other class-based

discrimination, but that issue is not before us ... because Bryan

has failed to allege it”.

at 277 n.18. Accordingly, it is

unsettled in this circuit whether a prosecution based on personal

vindictiveness, without any other impermissible consideration, can

violate equal protection.

We need not decide this issue, however, because the inquiry at

hand is, inter alia, whether Hill has alleged the violation of a

clearly established constitutional right. “To show that a right is

clearly established, the plaintiff does not have to refer to

precedent that is directly on point, or that declares that the

conduct in question is unlawful.” Shipp v. McMahon,

(5th Cir. 2000), cert. denied,

(2001).

Instead, a right is clearly established when “a reasonable official

30 would understand that what he is doing violates that right”.

Anderson v. Creighton,

(1987). In other words,

“in the light of pre-existing law the unlawfulness must be

apparent”.

When considering what is pre-existing law, we look

to precedent of the Supreme Court and this circuit. See Shipp,

(citing Boddie v. City of Columbus,

, 748

(5th Cir. 1993)).

A prosecutorial decision based on personal vindictiveness is

far removed from our established requirement that the improper

consideration be based on race, religion, the exercise of a

constitutional right, or some other similar classification. For

example, in both Kahl and United States v. Johnson, although our

court ultimately concluded there was no selective prosecution, the

defendants claimed selective prosecution because they were active

tax protesters. See Kahl,

; Johnson,

(5th Cir. 1978). In United States v. Greene,

(5th Cir.), cert. denied,

(1983),

although our court again determined there was no selective

prosecution, the defendants asserted they were prosecuted because

they were leaders in the 1981 air traffic controllers’ strike.

Similarly, in Wayte, although the Supreme Court determined

there was no selective prosecution, the defendant asserted

selective prosecution because he was a vocal opponent of selective

service registration. Wayte,

. And, more recently,

31 in United States v. Armstrong,

(1996), the Court

rejected the defendant’s selective prosecution claim, but there,

the defendant’s assertion was based on his race.

As stated, regarding whether a selective prosecution claim,

based on denial of equal protection, may be predicated solely on a

motive of personal vindictiveness, neither the Supreme Court nor

this circuit has recognized such a claim. Therefore, it is not

apparent today, much less in 1998 when this prosecution took place,

that such conduct would be unlawful in the sense it could

constitute an equal protection violation. Accordingly, Hill has

not alleged the violation of a clearly established constitutional

right.

As a result, we need not reach the second prong of the

qualified immunity analysis. The district court erred in denying

qualified immunity on this claim.

2.

Hill next contends that the Defendant members of the Board of

Adjustments violated her equal protection rights when they denied,

and refused to reconsider, her zoning variance request. “[T]he

Equal Protection Clause essentially directs that all persons

similarly situated be treated alike”. Wheeler v. Miller,

(5th Cir. 1999) (internal quotation marks omitted) (citing

City of Cleburne, Tex. v. Cleburne Living Ctr.,

(1985)); see Ford Motor Co. v. Tex. Dep’t of Transp.,

,

32 510 (5th Cir. 2001). Therefore, as a general rule, it follows

that, in order “to establish an equal protection claim the

plaintiff must prove that similarly situated individuals were

treated differently”. Wheeler,

; see Yates v.

Stalder,

(5th Cir. 2000) (“It is clearly

established that a state violates the equal protection clause when

it treats one set of persons differently from others who are

similarly situated.”) Thus, to allege that the variance denial

violated a clearly established constitutional right, Hill must, at

the least, allege that, while her request for a variance was

denied, another similarly situated person was granted a variance to

live in a business district.

Hill bases different treatment on her assertion that no one

has ever been denied a variance to live residentially in a business

zone. Hill attempts to support this by citing her affidavit.

Hill, however, does not make such a statement in her affidavit.

In considering this assertion, the district court cited Hill’s

response in opposition to summary judgment, in which she states:

“[I]n the history of Ordinance 125, no one has ever been denied a

variance requesting to live residentially in a business zone”. Of

course, as discussed supra, Hill’s response is not evidence. See

FED. R. CIV. P. 56(e) (“an adverse party may not rest upon the mere

allegations or denials of the adverse party’s pleading, but the

adverse party’s response, by affidavits or as otherwise provided in

33 this rule, must set forth specific facts showing there is a genuine

issue of material fact for trial” (emphasis added)); Skotak,

(in responding to motion for summary judgment, non-

moving party “must, either by submitting opposing evidentiary

documents or by referring to evidentiary documents already in the

record, set out specific facts showing that a genuine issue

exists”) (emphasis added and emphasis in original). Moreover, a

review of the summary judgment record reflects that Hill has not

otherwise offered evidence that any other similarly situated person

has ever been denied a variance.

Apparently in an effort to circumvent this, Hill states in her

affidavit that she has “personal knowledge of each of the matters

stated [in her affidavit] and in [her] Response to Motion for

Summary Judgment and they are true and correct”. Obviously, such

a broad, conclusory statement does not transform the statements in

her response into summary judgment evidence.

First, if such a statement could suffice, substantive

affidavits would no longer be necessary; instead, a party could

merely file a one sentence affidavit bootstrapping into the

affidavit all statements made in the response. This would

circumvent the requirements of Rules 56(c) and (e) of the Federal

Rules of Civil Procedure that require that evidence be asserted

through the use of affidavits, depositions, and the like. See FED.

R. CIV. P. 56(c) and (e).

34 Furthermore, Rule 56(e) requires that an affidavit “set forth

specific facts”. FED. R. CIV. P. 56(e). Any attempt to incorporate

the response into her affidavit did not “set forth specific facts”.

Instead, her statement seeking to do so simply alludes to the

numerous statements in the response, and in no way brought to the

district court’s attention the facts to which she was supposedly

swearing. Moreover, because a response usually contains not only

statements concerning facts, but also concerning contentions and

legal analysis, the district court would be required to attempt to

decide which statements were “facts” — evidence.

Any reliance on this statement is also inconsistent with

Hill’s recitation in her six page affidavit of numerous other facts

she also presented in her response. Accordingly, if her intent was

to use the incorporating statement in her affidavit to transform

her response into summary judgment evidence, the remainder of her

affidavit would not have been necessary. In addition, if her

assertion in the response regarding no other variance denials was

to be supported by this statement in the affidavit, Hill should

have cited to that portion of the affidavit, which she did not.

Regarding this equal protection claim, and because Hill has

not offered evidence that she was treated differently than others

similarly situated, she has not alleged the violation of a clearly

established constitutional right regarding the Board’s denial of

the variance. Accordingly, Defendants are entitled to qualified

immunity against this claim.

35 3.

Hill next asserts that the Board’s denial of, and failure to

reconsider, her variance request denied her due process. A

prerequisite to such a claim is “denial of a constitutionally

protected property right”. Bryan,

; see Spuler v.

Pickar,

(5th Cir. 1992) (“threshold issue is

whether [claimant] held any constitutionally-protected property

right”). Hill relies upon the denial of a property right as

recognized by Shelton v. City of College Station,

(5th Cir. 1985), modified on reh’g,

(5th Cir.) (en

banc), cert. denied,

(1986). The Shelton plaintiffs

sued under § 1983, claiming the board of adjustments’ zoning

variance denial violated due process. The plaintiffs’ building was

subject to a zoning requirement that, in order to operate a

business there, the plaintiffs had to provide required off-street

parking. Several requests by them were denied. The plaintiffs

presented evidence that many neighboring businesses were in

violation of the ordinance and that numerous variances had been

granted to other applicants.

Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

36 Board of Regents of State Colls. v. Roth,

(1972).

In this regard, our Shelton en banc court recognized that

Texas law conferred upon the plaintiffs the right to seek a

variance, with that right including judicial review of the

administrative decision. Shelton,

. Our en banc

court then observed: it “can be argued that because [the

plaintiffs] bypassed this state-furnished remedy, the state did not

deprive them of any property, at least to the extent that the

ignored remedy was a part of the protected property interest”.

The plaintiffs responded that the variance denial deprived them not

only of their right to seek a variance, but of the underlying use

of their property as well. The en banc court, however, did not

resolve this issue. It disposed of the case by deciding not whether

the variance-denial implicated a property interest, but, assuming

one was implicated, whether the board’s actions were violative of

due process.

a.

The Shelton en banc court’s observation that a property

interest may not be implicated where a landowner does not utilize

the state created appellate process to challenge the board’s

decision is, at first glance, pertinent here; Hill never utilized

her right under Texas law to challenge the Board’s decision. See

TEX. LOC. GOV’T CODE ANN. § 211.011 (Vernon Supp. 2001) (conferring

37 the right of appeal to any person aggrieved by a board of

adjustments decision; such person “may present to a district court,

county court, or county court at law a verified petition stating

that the decision of the board of adjustment is illegal in whole or

in part and specifying the grounds of the illegality”).

We will not consider this possible forfeiture issue because

Defendants have not raised it here. They have asserted instead

that Hill had no property interest in the variance because she had

no legitimate claim of entitlement to the variance. They base this

on the Board’s being vested with discretion to deny or grant the

request. As noted, if a party fails to brief an issue, we will not

consider it. See St. Paul Mercury Ins. Co. v. Williamson,

(5th Cir. 2000) (“we deem abandoned those issues not

presented and argued in an appellant’s initial brief”); Blanchard

v. Forrest,

(5th Cir.) (will not “consider

issues or arguments not raised in the appellant’s brief”), cert.

denied,

(1996).

Furthermore, Defendants did not raise this possible forfeiture

issue in the district court. Generally, we also “will not consider

on appeal matters not presented to the district court”. Blanchard,

; see Williamson,

(“we [do not]

consider matters not presented to the trial court”). Accordingly,

we will not consider whether Hill’s failure to appeal the Board’s

decision nullifies any property interest in the variance.

38 b.

In considering the variance-denial, the Shelton en banc court

held: “federal judicial interference with a state zoning board’s

quasi-legislative decisions, like invalidation of legislation for

irrationality or arbitrariness, is proper only if the governmental

body could have had no legitimate reason for its decision”.

Shelton,

(internal quotation marks omitted). In

other words, we must determine whether there was “a conceivable

factual basis for the specific decision made”.

. A

zoning decision, however, cannot “be justified by mouthing an

irrational basis for an otherwise arbitrary decision.... The key

inquiry is whether the question is at least debatable. If it is,

there is no denial of substantive due process as a matter of

federal constitutional law”.

(internal citation and

quotation marks omitted).

According to Hill, the Board’s justification for the variance-

denial is that it “did not want to alter the status of the property

since it was subject to the divorce litigation”. Hill maintains

this reason is not rational because any Ordinance 125 variance is

not transferrable — it expires when the recipient moves from the

affected property. This contention, however, does not demonstrate

it was irrational for the Board to wait until ownership of the

property was conclusively determined. At most, it renders only

debatable the legitimacy of the Board’s justification. It is not

39 irrational that the Board would want to ensure that, before a

variance was granted, even if that variance remained only with the

person making the request, that the true ownership interest in the

property is established.

Accordingly, for this due process claim, even assuming Hill

alleged the violation of a clearly established constitutional

right, the Defendants’ conduct was not objectively unreasonable in

the light of clearly established law. Therefore, they are entitled

to qualified immunity for this claim.

4.

As discussed, Hill states in her affidavit that Defendants

Drum (prosecutor), Daniel (police chief), Whitehurst (City Council

member), and other Council members met with Judge Waldie and

Charles Hill several times before Hill’s criminal trial to assemble

a list of persons, including spouses of Defendants, to serve as

jurors for her second criminal trial. Hill maintains this conduct

rendered her criminal trial fundamentally unfair, depriving her of

due process. Again, we must assume these facts are true.

“[T]he Due Process Clause guarantees the fundamental elements

of fairness in a criminal trial”. Spencer v. State of Texas,

(1967); see also Phillips v. Wainwright,

(5th Cir. 1980) (considering whether trial court’s

exclusion of expert witness testimony rendered trial fundamentally

unfair in violation of due process). In considering such a due

40 process claim, “[w]e examine the record ... only to determine

whether the error was of such a magnitude as to deny fundamental

fairness to the criminal trial, thus violating the due process

clause”. Woods v. Estelle,

(5th Cir.) (internal

quotation marks omitted), cert. denied,

(1977).

a.

Obviously, if the prosecutor, the judge, the police chief, and

one or more City Council members formulate a pre-selected jury list

of those likely to be sympathetic to the prosecution and then

empanel a jury based on that list, the resulting trial is

fundamentally unfair. It goes without saying that such actions

strike at the very heart of a fundamental guarantee of due process

— that a criminal defendant will be adjudicated before an impartial

tribunal. See Marshall v. Jerrico, Inc.,

(1980)

(“The Due Process Clause entitles a person to an impartial and

disinterested tribunal in both civil and criminal cases.”).

Accordingly, Hill has alleged the violation of a clearly

established constitutional right.

b.

Under the second prong of the qualified immunity analysis, we

must determine whether such conduct was objectively reasonable in

the light of clearly established law. Such corruption of the jury

selection process to increase the likelihood of a conviction is not

objectively reasonable conduct. Accordingly, Defendants Drum,

41 Daniel, and Whitehurst, as well as any other such participants

(pursuant to the related § 1983 conspiracy claim) are not entitled

to qualified immunity for their alleged role in pre-selecting

jurors for Hill’s criminal trial.

5.

The final claimed violation of a clearly established

constitutional right concerns Drum’s multi-capacity role: acting

as prosecutor and Charles Hill’s divorce attorney, as well as

practicing law with Judge Waldie, the presiding judge. According

to Hill, Drum’s conflict of interest denied Hill a fundamentally

fair trial, in violation of due process.

The Supreme Court has recognized that a prosecutor’s conflict

of interest can impact the fundamental fairness of a criminal

trial, resulting in denial of due process. Marshall,

; see also United States v. Dahlstrom,

(5th

Cir. 1999) (considering whether participation of attorney in

criminal securities fraud trial who also represented SEC in civil

action arising from the same facts violated right to prosecution by

impartial prosecutor), cert. denied,

(2000). In

Marshall, the Court made clear: “We do not suggest, and appellants

do not contend, that the Due Process Clause imposes no limits on

the partisanship of administrative prosecutors”.

.

Indeed, “[a] scheme injecting a personal interest, financial or

otherwise, into the enforcement process may bring irrelevant or

42 impermissible factors into the prosecutorial decision and in some

contexts raise serious constitutional questions”.

.

The Court, however, tempered this concern, noting:

“Prosecutors need not be entirely ‘neutral and detached[]’”.

at 248 (quoting Ward v. Village of Monroeville, Ohio,

(1972)). In addition, “prosecutors may not necessarily be held

to as stringent a standard of disinterest as judges”. Young v.

United States,

(1987). Ultimately, the Court did

not “say with precision what limits there may be on a financial or

personal interest of one who performs a prosecutorial function, for

here the influence alleged to impose bias is extremely remote”.

Marshall, 442 U.S. at 250 (internal footnote omitted).

In the one sentence of her brief discussing this claimed due

process violation, Hill bases this claim on Drum’s “multi-capacity

nature”. The simple fact that a prosecutor represents a criminal

defendant’s spouse in that defendant’s divorce proceedings does

not, by itself, demonstrate that the defendant did not receive a

fundamentally fair criminal trial. The same is true where the city

prosecutor practices law with the municipal judge. At most, any

conflict of interest that may have been present would have been of

an ethical, not a constitutional, concern. Were this not the case,

any minor conflict of interest would result in a constitutional

violation. Accordingly, Hill has not alleged the violation of a

clearly established constitutional right.

43 III.

In sum: (1) we lack jurisdiction over the sovereign immunity

denial; (2) Drum, in her individual capacity, is entitled to

prosecutorial immunity except for Hill’s due process claim based on

the alleged jury rigging; and (3) the other individual Appellant

Defendants, in their individual capacities, are entitled to

qualified immunity, with the exception that Drum, Daniel,

Whitehurst, and possibly others (through the related conspiracy

claim) are not entitled to qualified immunity from Hill’s due

process claim based on the alleged jury rigging.

Therefore, the summary judgment denial is AFFIRMED IN PART,

REVERSED IN PART, and REMANDED for further proceedings consistent

with this opinion.

44