Justia.com Opinion Summary: Shortly after announcing her intention to seek election to the office of county clerk, Appellant Stacie Cook was discharged from her position as a deputy clerk by the incumbent county clerk, Appellee Lisha Popplewell, who also intended to seek election to the clerk position. Following Cook's defeat in the primary election, she brought a 42 U.S.C. 1983 action against Popplewell and the county, alleging that she had been discharged in violation of her First and Fourteenth Amendment rights. The circuit court dismissed Cook's complaint by summary judgment, ruling that Cook's interest in being a candidate enjoyed no constitutional protection. The court of appeals affirmed. The Supreme Court affirmed, holding that there was no reason to deviate from settled law concluding that there is no constitutional right to candidacy.
Receive FREE Daily Opinion Summaries by Email Download as PDF
Loading PDF...
<![CDATA[
RENDERED: DECEMBER 22, 2011
TO BE PUBLISHED
,iniarrittr (Courf iifrnfurhg
2009-SC-000341-DG
STACIE L. COOK
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2008-CA-001249-MR
RUSSELL CIRCUIT COURT NO. 06-CI-00275
LISHA POPPLEWELL, IN HER
CAPACITY AS COUNTY CLERK
OF RUSSELL COUNTY, KENTUCKY
AND
RUSSELL COUNTY, KENTUCKY
APPELLEES
OPINION OF THE COURT BY JUSTICE VENTERS
AFFIRMING
Shortly after announcing her intention to, seek election to the office of
Russell County Clerk, Appellant, Stacie Cook, was discharged from her position
as a deputy clerk by the incumbent Russell County Clerk, Appellee, Lisha
Popplewell, who also intended to seek election to the Clerk position. Following
Cook's defeat in the primary election, she brought this 42 U.S.C. § 1983 action
in the Russell Circuit Court, against Popplewell and Russell County alleging
that she had been discharged in violation of her rights under the First and
Fourteenth Amendments to the United States Constitution. The circuit court
dismissed Cook's complaint by summary judgment, ruling that Cook's interest
in being a candidate enjoyed no constitutional protection. The Court of
Appeals upheld that ruling and we granted Cook's motion for discretionary
review to consider the important constitutional question thus presented.
Upon our last consideration of whether there is a constitutional right to
candidacy, in Corn. ex rel. Stumbo v. Crutchfield, 157 S.W.3d 621 (Ky. 2005), we
concluded that there was not. Discerning no reason to deviate from our settled
law on this point, we affirm the circuit court's awarding of summary judgment
in favor of Popplewell and Russell County.
I. FACTUAL AND PROCEDURAL BACKGROUND
Construing the record in favor of the party opposing the summary
judgment, as we must, Spencer v. Estate of Spencer, 313 S.W.3d 534 (Ky. 2010)
(citing Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.
1991)), it appears that Cook began working for the Russell County Clerk's office
in about February 2004, when she was hired as a deputy clerk by then-County
Clerk, Bridget Popplewell, the Appellee's sister. At that time, Lisha Popplewell
was serving as a deputy clerk. Several months later, Bridget resigned from her
office, and Lisha Popplewell was appointed to serve as interim County Clerk
until the next election in 2006. It was apparently known that Lisha Popplewell
intended to retain the office by running in the 2006 election, and at some point
in 2005 Cook decided to run for the office as well. Although she had not
formally announced her candidacy, Cook states that by August 2005 she had
revealed to her co-workers in the County Clerk's office of her decision to run
and she had begun to campaign: Those campaign activities included
discussing her candidacy and seeking support from people who came to the
2
County Clerk's office to conduct business. However, as further discussed
below, Cook does not associate her discharge with any of these activities.
Rather, she alleges that she was discharged solely as a result of her status as a
candidate seeking to unseat Popplewell — and not for any expressive campaign
activities or political affiliations.
Soon after Cook disclosed her intentions to run, on August 16, 2005,
Popplewell summarily discharged her. Popplewell maintains that she was not
aware of Cook's intention to run against her and that the discharge was for
work-related reasons. Cook counters by noting that she had no record of
deficient job performance and that the timing of her discharge strongly
suggests that the discharge was related to the disclosure of her plan to run.
The resolution of that factual point is not germane to this appeal because, as
noted above, upon review of a summary judgment dismissing a claim, we
accept the facts as viewed from the claimant's (Cook's) perspective.
Cook then filed the 42 U.S.C. § 1983 action in the Russell Circuit Court.
Popplewell, in her official capacity as Russell County Clerk, and Russell County
moved for summary judgment on the merits citing these grounds: first, that the
discharge of a single employee was not the sort of policy decision that would
support official capacity or county liability under 42 U.S.C. § 1983; and
second, that under Kentucky law counties and county officials sued in their
official capacities enjoy sovereign and official immunity, respectively. In
granting Popplewell's motion for summary judgment, the trial court relied on
Carver v. Dennis, 104 F.3d 847 (6th Cir. 1997), to rule that Cook's discharge
did not implicate her constitutional rights.' The court also agreed with
Popplewell that nothing in the record "indicat[ed] that the County committed
any wrong," and further agreed, citing Yanero v. Davis, 65 S.W.3d 510 (Ky.
2001), that both defendants are immune from suit under Kentucky law.
Cook appealed to the. Court of Appeals. Her argument before that Court
was that the trial court's reliance on Carver was misplaced, that the trial court
erred by deeming itself bound by the Sixth Circuit Court of Appeals' decision
and also that the trial court erred by following the reasoning in Carver, which
she argues is misreading of the constitutional issue presented. Although the
Court of Appeals recognized that Carver was not binding authority, it
nevertheless found Carver to be persuasive and in accord with decisions from
other federal circuits. On that basis, it affirmed the summary judgment.
Having resolved the case on the merits, the Court of Appeals declined to
address the trial court's immunity ruling. Neither party asked the Court of
Appeals to review the trial court's third reason for granting summary judgment:
its conclusion that Cook failed to allege a wrong attributable to Russell County.
Though Crutchfield is otherwise dispositive of the case, the trial court's order
awarding summary judgment did not cite that decision.
1
4
That issue, therefore, is before us only to the extent that it provides alternative
support for the trial court's judgment. 2
II. THE DEFENDANTS ARE NOT IMMUNE TO COOK'S LAWSUIT
As a preliminary matter, we consider the Appellees' claim that they are
immune from Cook's lawsuit under state immunity law.
As noted, Cook brought her complaint pursuant to 42 U.S.C. § 1983,
which creates a remedy for violations of federal rights committed by persons
acting under color of state law. In pertinent part, the statute provides that:
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . ., subjects, or causes
to be subjected, any citizen of the United States or other persons
within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
The United States Supreme Court has explained that while the states
themselves and the arms of the state (which have traditionally enjoyed
Eleventh Amendment immunity) are not subject to suit under § 1983,
subdivisions of the state — such as counties, school districts, and
municipalities — are "persons" for the purposes of the statute and may not be
shielded from liability by state-created immunities. Howlett v. Rose, 496 U.S.
2 In her concurring opinion, Justice Abramson suggests that we should have
avoided the First Amendment issue presented here, and decided the case upon the
deficiencies in Cook's §1983 pleadings, or upon the grounds that Cook's conduct in
the workplace may have justified her dismissal. However, even the concurrence notes
that the issue we address "is properly before us." And, basing an opinion as the
concurrence suggests, on Cook's speech and conduct in the workplace does not avoid
a constitutional issue, it simply substitutes a different one - one not raised in the
petition before us. Finally, and more importantly, in granting review of the issues
presented, we recognized an overarching need to resolve this point of law and to state
with clarity the reasons for our decision.
5
356, 375-81 (1990); Martinez v. California, 444 U.S. 277, 284 (1980) ("Conduct
by persons acting under color of state law which is wrongful under 42 U.S.C. §
1983 . . . cannot be immunized by state law.") To the extent, then, that the
trial court believed the defendants to be immune from Cook's § 1983 claim
under Kentucky immunity law, it was mistaken. 3
III. COOK'S § 1983 CLAIM
To be entitled to relief under § 1983, Cook must establish: (1) that she
has been deprived of a right secured by the Constitution or laws of the United
States; and (2) that the defendants, here Russell County and Popplewell in her
official capacity as Russell County Clerk, are responsible for the violation.
Collins v. City of Harker Heights, Texas, 503 U.S. 115, 120 (1992). To satisfy
the first element of her § 1983 claim, Cook alleged constitutional violations
under the First Amendment and the Due Process Clause of the Fourteenth
Amendment.
As noted in Section VI., infra, Cook's Fourteenth Amendment Due
Process argument is not adequately preserved for our review, leaving only her
First Amendment claim for our consideration. 4 Thus, with respect to the first
requirement for § 1983 relief, as far as we are concerned, Cook alleges only
that she was discharged in retaliation for being a candidate in opposition to her
Clevinger v. Board of Educ. of Pike County, 789 S.W.2d 5, 12 (Ky. 1990), held
that public school boards of education were shielded by state immunity law from
liability under 42 U.S.C. § 1983. Although Howlett unambiguously abrogated that
holding, see Jefferson County Fiscal Court v. Peerce, 132 S.W.3d 824, 835 (2004), we
nevertheless, as additional guidance, now clarify that Clevinger is expressly overruled.
3
Cook makes no specific statutory claims or arguments relating to the
Kentucky Constitution. Thus this case is decided solely upon this Court's
interpretation of the First Amendment of the United States Constitution.
4
6
boss, and that her firing deprived her of her right to run for political office as
guaranteed under the First Amendment. 5
IV. THERE IS NO FIRST AMENDMENT RIGHT TO CANDIDACY
As noted, Cook argues that she is entitled to § 1983 relief because she
was discharged for the exclusive reason that she undertook a rival campaign to
unseat Popplewell as Russell County Clerk, a right she contends is secured by
the First Amendment of the United States Constitution. 6 Therefore, pursuant
to the concessions made and arguments presented by Cook, the question we
address is limited to whether candidacy for political office, standing alone,
receives protection under the First Amendment.? It follows that our review
excludes from consideration the various methods of expressive speech and
5 In her original complaint, Cook alleged a far broader violation of her
constitutional rights, stating: "Plaintiff was terminated in violation and contravention
of both the Constitution of the Commonwealth of Kentucky and the First and
Fourteenth Amendments of the United States Constitution. Specifically, Plaintiff's
exercise of the freedom of speech, the freedom to express her political beliefs, the
freedom to seek public office, the freedom of association, the exercise of political
franchise, the exercise of political patronage, the right of enjoying life and liberty, and
the right of freely communicating thoughts and opinions were among the liberties,
rights, and privileges to which Plaintiff was entitled that were breached by the
Defendants in terminating the employment of Plaintiff." Because Cook makes no
claims on appeal in pursuit of these additional alleged infringements, they are deemed
to be waived. Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 815 (Ky. 2004).
6 The First Amendment states: "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances."
7 In her deposition testimony, Cook testified that she "believe[d] that [she was]
fired solely because [she] announced [she] were going to run against [Popplewell] for
county clerk." (emphasis added). Similarly, in her opening brief, Cook states as
follows: "Stacie contends that her rival candidacy was the sole reason for her firing,"
(emphasis added), and that this appeal presents the following "concise issue[]":
"Popplewell, the incumbent clerk, fired Stacie, a deputy clerk, because of her rival
candidacy. Did Popplewell's firing of Stacie violate her rights under the United States
Constitution?"
7
conduct, and of assembly and association, which occur during the ordinary
course of a political campaign. Nor does this case implicate Cook's association
with particular political parties, groups, or points of view, or her political
opinions or beliefs. Our only concern, therefore, is whether candidacy,
standing alone, is a First Amendment right. 8
To prevail on a retaliation claim stemming from the exercise of First
Amendment rights:
an employee must prove that the conduct at issue was
constitutionally protected, and that it was a substantial or
motivating factor in the termination. If the employee discharges
that burden, the government can escape liability by showing that it
would have taken the same action even in the absence of the
protected conduct . . . . And even termination because of protected
speech may be justified when legitimate countervailing government
interests are sufficiently strong.
Board of County Comm'rs v. Umbehr, 518 U.S. 668, 675 (1996).
As noted, in Crutchfield, 157 S.W.3d 621, we unambiguously held that,
in this Court's view, candidacy for political office, standing alone, is not
constitutionally protected. As discussed below, we find no reason to digress
from that holding, and, from this determination, we 'additionally conclude that
Cook has failed to establish that her discharge in retaliation for her candidacy
8 In her separate opinion, Justice Abramson criticizes our consideration of
candidacy per se (meaning candidacy in isolation, unattached to the forms of
expression typically associated with a run for public office) as a "sort of metaphysical"
concept undeserving of our attention. However, that is precisely the issue as framed
by Cook herself, who by her own account, was discharged solely on account of her
candidacy, and not for any associated expressive speech, conduct, or associational
activities. Moreover, as further discussed herein, federal courts in the Sixth, Seventh,
and Eleventh Circuits have each addressed this precise issue in Carver v. Dennis, 104
F.3d 847 (6th Cir. 1997); Newcomb v. Brennan, 558 F.2d 825 (7th Cir. 1977); and
Randall v. Scott, 610 F.3d 701 (11th Cir. 2010), respectively. See also Deemer v.
Durell, 110 F.Supp.2d 1177 (S.D. Iowa 1999)(discussing cases that "have found that
there is no per se right to candidacy.") The issue we address is far from original to this
case, and the terminology is well established in this area of review.
8
resulted in a violation of any constitutionally protected right under the First
Amendment.
A. Kentucky Precedent Addressing a Right to Candidacy
Our prior examination of whether there is a constitutional right to
candidacy is, principally, found in three cases: Yonts v. Com . ex rel. Armstrong,
700 S.W.2d 407 (Ky. 1985); Chapman v. Gorman, 839 S.W.2d 232, 237-238
(Ky. 1992), and Crutchfield. 9 Therefore, we begin our discussion with a brief
review of these three important cases.
In Yonts, a board of education member (Yonts) declared his candidacy for
the Kentucky House of Representatives, an office requiring the taking of the
constitutional oath. Subsequently, the Attorney General brought a successful
action to oust Yonts from his board seat pursuant to a "resign-to-run" statute
which rendered ineligible any board of education member who became a
candidate for nomination or election to a state office requiring the taking of the
constitutional oath. On appeal to this Court, Yonts argued, inter alia, that the
statute violated his First Amendment right to seek political office. In rejecting
this argument, we dismissively observed that Yonts's "'free speech' argument
evokes but little reaction in this [] court." Id. at 408. 10 While we did not
expressly decide so at that time, by this choice of words, we obviously
expressed a strong doubt that there is a First Amendment right to candidacy,
and, moreover, foreshadowed our later holding in Crutchfield.
9 See also Combs v. Huff, 858 S.W.2d 160, 163 (Ky. 1993) (there is no
fundamental right to gain ballot access) and Mobley v. Armstrong, 978 S.W.2d 307 (Ky.
1998) (two year residency requirement to run for district court judgeship does not
violate equal protection.).
10
This wording was adopted from the decision of the circuit court.
9
In Chapman, 839 S.W.2d 232, we considered a challenge to the
constitutional validity of anti-nepotism provisions of a statute that, with certain
exceptions, prohibited anyone from serving as a school board member who had
a relative employed by the school district. We acknowledged in Chapman the
noncontroversial principle that candidacy is not a fundamental right: "The
alleged injury . . . does not involve a fundamental right because no such status
is given to candidacy." Id. at 237-238. 11 We left open, however, the question of
whether some lesser, non-fundamental measure of constitutional protection
was afforded to candidacy.
We answered that question in Crutchfield, another case involving the
school board anti-nepotism statutes. In Crutchfield, as in Chapman, the
Attorney General sought to oust from office a county board of education
member under our anti-nepotism provisions. In again upholding the
provisions, we stated, "[i]t [the anti-nepotism statute under review] does not
inflict injury to Appellee's right to candidacy, because no such constitutional
status exists." Id. at 624 (citing Bullock v. Carter, 405 U.S. 134 (1972))
(emphasis added). It bears emphasis that, whereas in Chapman we held there
is no fundamental constitutional right to candidacy, in Crutchfield we
11 Citing Bullock v. Carter, 405 U.S. 134, 143 (1972); Yonts, 700 S.W.2d 407; J.
Nowak, R. Rotunda, and J.N. Young, Constitutional Law, Chap. 16, § VIII, p. 776, (2d
ed. 1983); and L. Tribe, American Constitutional Law, § 13-19 (2d ed. 1988). The
decision further noted that various federal circuit courts of appeal, under Equal
Protection Clause analysis and First Amendment challenges have adhered to Bullock
in holding that there is no fundamental right to candidacy (citing Stiles v. Blunt, 912
F.2d 260, 265 (8th Cir. 1990); Zielasko v. State of Ohio, 873 F.2d 957 (6th Cir. 1989);
Hatten v. Rains, 854 F.2d 687, 693 (5th Cir. 1988); and Plante v. Gonzalez, 575 F.2d
1119, 1126 (5th Cir. 1978)).
10
broadened our expression to state that there is no constitutional right to this
status at all. This remains the clearly identifiable law in this jurisdiction.
Since Crutchfield is otherwise dispositive, for Cook to prevail on her First
Amendment claim, as a preliminary matter, it would be necessary for us to
overrule Crutchfield's holding that there is no constitutional right to
candidacy.' 2 And while we recognize that "the doctrine of stare decisis is less
rigid in its application to constitutional precedents," Harmelin v. Michigan, 501
U.S. 957, 965 (1991), we must nevertheless bear in mind that its purpose is to
"ensure that the law will not merely change erratically, but will develop in a
principled and intelligible fashion." Chestnut v. Commonwealth, 250 S.W.3d
288, 295 (Ky. 2008) (quoting Vasquez v. Hillery, 474 U.S. 254, 265-265 (1986)).
The concurring opinion of Justice Abramson chastises our giving
credence to the plain meaning of Crutchfield's holding that there is no
constitutional right to candidacy, a holding she would treat as mere dicta.
However, we have no reason to suppose that the Crutchfield Court did not give
careful consideration to this issue, and, moreover, we should not go down the
road of recasting clear holdings as dicta in order to avoid adverse authority.
The concurrence further suggests that Crutchfield is flawed because it relied
principally upon Bullock v. Carter, 405 U.S. 134 (1972). However, Bullock was
Cook cites us to the Court of Appeals decision in Allen v. Board of Education
of Jefferson County, 584 S.W.2d 408 (Ky. App. 1979), a case which considered two
teachers who were forced to take a leave of absence pursuant to school policy because
they were candidates for public office in the 1977 General Election. Allen held the
school policy "inappropriate," explaining: "The appellants, by running for the
legislature, were exercising their rights of free speech and association. These rights
are protected by the First Amendment to the United States Constitution and may not
be abridged without proof of compelling state interest." To the extent that Allen
12
conflicts with our decision in this case, it is accordingly overruled.
11
one of the three principal cases relied upon in Newcomb v. Brennan, 558 F.2d
825 (7th Cir. 1977), which is the origin of both the Seventh Circuit's and the
Sixth Circuit's line of cases holding that there is no constitutional right to
candidacy. Crutchfield was far from the first case to recognize Bullock for the
proposition that there is no constitutional right to candidacy.
As further discussed below, based upon applicable United States
Supreme Court precedent, persuasive federal circuit court precedent, our
independent reconsideration of whether the First Amendment protects a right
to candidacy, and principles of stare decisis, we are unable to conclude that
the constitutional interpretation we adopted in Crutchfield should be disturbed.
Stoll Oil Refining Co. v. State Tax Commission,
221 Ky. 29, 296 S.W. 351 (1927)
(the stare decisis doctrine is entitled to great weight, and is adhered to unless
the principle established is clearly erroneous).
B. United States Supreme Court Precedent Addressing a Right to
Candidacy
The two United States Supreme Court decisions underpinning its
jurisprudence on whether there is a constitutional right to candidacy are
Bullock v. Carter, 405 U.S. 134 (1972) and Clements v. Flashing, 457 U.S. 957
(1982).
Bullock concerned an action challenging the constitutional validity of the
Texas primary election filing fee system, which required candidates for some
offices to pay a filing fee to be listed on the party primary ballots. In striking
down the filing fee statutes on Equal Protection grounds, the Supreme Court
stated, "Nile initial and direct impact of filing fees is felt by aspirants for office,
12
rather than voters, and the Court has not heretofore attached such fundamental
status to candidacy as to invoke a rigorous standard of review." Id. at 142-143
(emphasis added). This wording, obviously, is ambiguous upon the question of
whether there is or is not a lesser, non-fundamental right to candidacy.
A decade later, in Clements, the Court considered a case brought by four
elected Texas officials and twenty Texas registered voters challenging the
constitutionality of: (1) a provision of the Texas Constitution rendering an
officeholder ineligible for the state legislature if his current term of office was
not scheduled to expire until after the legislative term to which he aspired
began, and (2) a "resign-to-run" or "automatic resignation" provision, under
which a wide range of state and county officeholders with more than one year
left on their term of office were deemed to have automatically resigned if they
became a candidate for another office. In upholding the provisions, the
Supreme Court, citing Bullock, stated: "Far from recognizing candidacy as a
`fundamental right,' we have held that the existence of barriers to a candidate's
access to the ballot "'does not of itself compel close scrutiny."'
Clements, 457
U.S. at 963 (emphasis added).
In parsing the cited quotes from Bullock and Clements, other courts have
reached opposite conclusions. Some courts have interpreted the Supreme
Court's holding that there is no fundamental constitutional right to candidacy
to mean that there is, nevertheless, some residual constitutional right; that is,
a right of lesser significance than a "fundamental" right, but a right
nonetheless. See, e.g., Randall v. Scott, 610 F.3d 701 (11th Cir. 2010).
Adherents of this view hold that the Court's ruling out of a "fundamental" First
13
Amendment right to candidacy necessarily implies the existence of some other
variant of a First Amendment right.
Other courts interpret the same language from Bullock and Clements to
mean that not only is there not a fundamental right to candidacy, but, by
inference, that there is no constitutional right at all.
See, e.g., Carver, 104 F.3d
at 852-53; Newcomb v. Brennan, 558 F.2d 825 (7th Cir. 1993); and Crutchfield,
157 S.W.3d 621. It appears that these courts have construed the Supreme
Court's refusal to expressly acknowledge a lesser level of First Amendment
protection as a signal that there is none. Also factored into this view is the
notion that had there been such a right, the Court could have easily have said
so. 13
While only the United States Supreme Court can definitively parse the
unclear wording, we find significance in that Court's use of the term, "far from"
in the Clements quote, "Far from recognizing candidacy as a 'fundamental right'
. . . ." 457 U.S. at 963. The phrase "far from" (used as an adverb) has an
idiomatic meaning defined as "of a distinctly different and especially opposite
quality than." 14 Under this definition, arguably the "especially opposite
quality" of a fundamental right is "no right at all" (rather than "some right"). 15
Bullock and Clements
Therfo,asund—perhtb—asingof
is that there is no constitutional right at all to candidacy. If this parsing is
For example the Court could have said: "While there is a constitutional right
to candidacy, that interest does not rise to the level of a fundamental right."
13
http://www.merriam-webster.com/dictionary/far (select "adverb") (all
internet cites last viewed December 12, 2011).
14
Merriam-Webster uses the example "the trip was far from a failure" meaning the trip was a success - to illustrate the idiomatic usage of the phrase.
15
14
correct, then our holding in Crutchfield is, of course, accurate. Out of due
consideration for the doctrine of stare decisis, therefore, we will lean toward
this interpretation.
Before ending our discussion of the Supreme Court cases, it is
interesting to note that in United States Civil Service Commission v. National
Association of Letter Carriers AFL-CIO, 413 U.S. 548 (1973), a Hatch Act case, 16
theCourdisca levntwhicmaygsoenhti
original intent of the Framers of the United States Constitution concerning
whether there is a First Amendment right to candidacy. The Letter Carriers
decision references events occurring not long after our founding under the
presidency of Thomas Jefferson:
Early in our history [in 1801],[ 17 ] Thomas Jefferson was disturbed
by the political activities of some of those in the Executive Branch
of the Government. See 10 J. Richardson, Messages and Papers of
the Presidents 98 (1899). The heads of the executive departments,
in response to his directive, issued an order stating in part that
`(t)he right of any officer to give his vote at elections as a qualified
citizen is not meant to be restrained, nor, however given, shall it
have any effect to his prejudice; but it is expected that he will not
attempt to influence the votes of others nor take any part in the
Generally, the Hatch Act (5 U.S.C.A. §§ 1501 to 1508, 7321 to 7326) prohibits
certain government employees from engaging in certain political activities or from
being partisan candidates for elected office.
16
17 See McCormick v. Edwards, 646 F.2d 173, 176-177 (5th Cir. 1981), for a
more detailed discussion of this event. This decision also notes that in 1907,
President Theodore Roosevelt issued an executive order to the effect that federal civil
servants, "while retaining the right to vote as they please and to express privately their
opinions on political subjects, shall take no part in political management or political
campaigns." Exec. Order No. 642 (June 3, 1907) (emphasis added). See also McAuliffe
v. City of New Bedford, 29 N.E. 517 (Mass. 1892), which upholds the discharge of a
policeman who displeased the mayor by engaging in political activities. Justice
Holmes, then of the Supreme Judicial Court of Massachusetts, held that the mayor
could lawfully discharge the politically active policeman, famously stating "The
petitioner may have a constitutional right to talk politics, but he has no constitutional
right to be a policeman."
15
business of electioneering, that being deemed inconsistent with the
spirit of the Constitution and his duties to it.'
Id. at 557 (emphasis added). This anecdotal account of one of the principal
Founder's condemnation of electioneering by "officers" of the executive branch
(which would seemingly encompass running for office) as "inconsistent with the
spirit of the Constitution and his duties to it," arguably hints that in the early
years of the Republic, being a candidate for public office was not viewed as
constitutionally protected under the First Amendment. If the "spirit of the
Constitution" may proscribe public employees from candidacy, possibly the
Founders did not intend to include a right to candidacy in the Amendment at
all. 18
Or, alternatively, if they intended a First Amendment right for the general
public, did not intend that the right to extend to public employees (the situation we
address). Though this would not agree with the modern cases under which public
employees are not be seen as forfeiting their constitutional rights altogether, but
rather, that constitutional rights survive their governmental employment, but are,
where applicable, subordinated to significant governniental interests.
18
16
Beyond Bullock and Clements we find little direction concerning the
Supreme Court's view on this precise issue.' 9 Clearly, Bullock and Clements
are not at odds with our conclusion in Crutchfield. We simply find no reason to
infer from the Supreme Court's determination that the First Amendment
embodies no fundamental right to candidacy, that there is, nevertheless, some
lesser form of a constitutional right to candidacy found in the First
Amendment. Thus, our Crutchfield decision and the decision we reach today
may be comfortably reconciled with the two principal Supreme Court
pronouncements on the issue.
C. U.S. Federal Circuit Precedent
We next examine select federal circuit court decisions relevant to our
holding today. As discussed below, the Sixth Circuit and Seventh Circuit
19 Cf., for example, Broadrick v. Oklahoma, 413 U.S. 601 (1973) (upholding
Oklahoma statute which provided that certain public officials shall not be a member of
any national, state or local committee of a political party, or an officer or member of a
committee of a partisan political club, or a candidate for nomination or election to any
paid public office upheld because the statute regulated political activity in an evenhanded and neutral manner); National Association of Letter Carriers, AFL CIO, 413 U.S.
548 (upholding federal Hatch Act prohibition against federal employees taking an
active part in political management or in political campaigns on the basis that neither
First Amendment nor any other provision of Constitution invalidated Congress's
barring such partisan political conduct by federal employees); United Public Workers v.
Mitchell, 330 U.S. 75 (1947) (Congress may regulate the political conduct of
government employees within reasonable limits, though the regulation trenches to
some extent upon unfettered political action, the extent of regulation lying primarily
with Congress, and courts will interfere only when such interference passes beyond
the general existing conception of governmental power, as developed from practice,
history, and changing educational, social and economic conditions.); Williams v.
Rhodes, 393 U.S. 23 (1968) (Ohio election laws making it virtually impossible for new
political party, even though it has hundreds of thousands of members, or an old party,
which has very small number of members, to be placed on state ballots to choose
electors pledged to particular candidates for Presidency and Vice-Presidency of United
States resulted in denial of equal protection of the laws); and Buckley v. Valeo, 424
.U.S. 1, 39-59 (1976) (per curiam ) (holding, inter alia, that provisions limiting
expenditures by candidates on their own behalf violated the candidates' rights to
freedom of speech).
-
17
Court of Appeals have taken the initiative among the federal courts in
concluding that there is no per se First Amendment right to mere candidacy,
though, as noted in Justice Abramson's concurrence, other jurisdictions hold
otherwise. 20
The Seventh Circuit cases holding that there is no federal constitutional
right to candidacy include Newcomb, Bart v. Telford, 677 F.2d 622 (7th Cir.
1982), and Wilbur v. Mahan, 3 F.3d 214 (7th Cir. 1993). In Newcomb, a
discharged deputy city attorney alleged that his constitutional rights were
violated by his dismissal from his position when, against the wishes of the city
attorney, he announced his intention to run for Congress. In upholding the
discharge, the court cited to Buckley v. Valeo, 424 U.S. 1, 39-59 (1976) (per
curiam); Bullock, 405 U.S. 134; and Williams v. Rhodes, 393 U.S. 23 (1968),
and concluded that, "[t]hese decisions indicate that plaintiffs interest in
seeking office, by itself, is not entitled to constitutional protection." 558 F.2d
828. 21 In Bart, a city employee brought a complaint against the mayor and
three of his subordinates after she was required to take a leave of absence
20 Justice Abramson's concurrence comprehensively discusses cases from other
federal circuits addressing whether there is a constitutional right to candidacy, and so
we do not duplicate her effort in our discussion. See also, 44 A.L.R. Fed. 306,
Prohibiting Public Employee From Running for Elective Office as Violation of Employee's
Federal Constitutional Rights).
21 Noting that the deputy city attorney's complaint implicated interests which
are broader than a per se right to candidacy (i.e. that the firing represented
punishment by the state based on the content of a communicative act) the court
concluded "that under the circumstances of this case, plaintiffs interest in seeking
office was protected by the First Amendment."
18
while campaigning for mayor. In upholding the district court's dismissal of this
aspect of the complaint, 22 Judge Posner stated as follows:
So far as the first allegation is concerned, that by forcing her to
take a leave of absence the mayor infringed her First Amendment
rights, the only right specifically alleged is the right to run for
public office. The First Amendment does not in terms confer a right
to run for public office, and this court has held that it does not do so
by implication either. Newcomb v. Brennan, 558 F.2d 825, 828 (7th
Cir. 1977). It is true that political campaigns are important
vehicles for the expression of ideas and opinions on public issues,
notably by the candidates themselves, and therefore that
restrictions on eligibility for public office could impair free speech.
Nevertheless, this court held in Newcomb that a restriction on
candidacy could not be presumed to have this effect; something
more than the restriction had to be shown to bring the First
Amendment into play.
Id. at 624 (emphasis added).
In Wilbur, a deputy sheriff brought a § 1983 action against the sheriff,
claiming violation of his First Amendment rights. While the majority
principally analyzed the case under the Elrod-Branti test, 23 in his concurrence,
Judge Easterbrook, citing Clements, 457 U.S. 957; Broadrick, 413 U.S. 601;
National Association of Letter Carriers AFL-CIO, 413 U.S. 548, and United Public
Workers v. Mitchell, 330 U.S. 75 (1947), stated: "My colleagues treat a simple
case governed by settled doctrine as if it were complex and novel. Much could
be said for their discussion as an original matter, but it is not an original
matter. The Supreme Court has held that, without violating the First
Amendment, a public body may forbid its employees to run for elective office."
Wilbur, 3 F.3d at 219.
22 The court held that plaintiffs complaint that she was harassed after
returning to work from her unsuccessful campaign was cognizable.
23
See Elrod v. Burns, 427 U.S. 347 (1976) (plurality opinion), and Branti v.
Finkel, 445 U.S. 507 (1980).
19
The key Sixth Circuit case finding no First Amendment right to
candidacy is Carver, 104 F.3d 847, 24 a case factually indistinguishable from
the case sub judice, and also the decision principally relied upon by the circuit
court and the Court of Appeals in ruling against Cook. Narrowly stating the
issue as "whether Carver, a deputy county clerk who was an at-will employee
in a two-person office - the other person being the county clerk herself - had a
First Amendment right to run against the incumbent clerk in the next election
and still retain her job," id. at 849, the Sixth Circuit affirmed the dismissal
because it was not based upon Carver's political beliefs or affiliations, but
rather was related solely to Carver's running for the county clerk position.
Citing to Bart, 677 F.2d at 624, the court concluded that "Carver's termination
is neutral in terms of the First Amendment." Carver, 104 F.3d at 852. After
further discussion of authorities cited by the parties, the court held as follows:
In sum, we hold that no reading of the First Amendment required
Dennis to retain Carver after Carver announced her intention to
run against Dennis for Dennis's office. To hold otherwise, on the
facts of this case, would be to read out of the entire line of relevant
Supreme Court precedent the factual requirements of political
belief, expression and affiliation, partisan political activity, or
expression of opinion, and to read into that precedent a
fundamental right to candidacy. The First Amendment does not
require that an official in Dennis's situation nourish the viper in
the nest. Dennis's discharge of Carver did not implicate Carver's
First Amendment rights.
Id. at 853. Carver has since been followed in, Greenwell v. Parsley, 541 F.3d
401, 404 (6th Cir. 2008), cert. denied 130 S.Ct. 64 (sheriffs firing of deputy
24 The circuit court applied Carver as though it was bound by the decision as
controlling precedent. That, however, is not a correct application of Sixth Circuit
precedent. Natural Resources and Environmental Protection Cabinet v. Kentec Coal Co.,
177 S.W.3d 718, 725 (Ky. 2005) ("Decisions of the lower federal courts are not
conclusive as to state courts[.]")
20
after learning deputy planned to run against him in election did not violate
deputy's First Amendment rights) and Myers v. Dean, 216 Fed. Appx. 552, 554
(6th Cir. 2007) (county clerk's firing of deputy clerk after she ran against him
in election did not violate First Amendment); Cf. Murphy v. Cockrell, 505 F.3d
446 (6th Cir. 2007) (distinguishing Carver where termination by the PVA of a
Deputy PVA following a rival candidacy was based upon the "employee's
political expressions during her own candidacy.").
In her concurrence, Justice Abramson comprehensively surveys other
federal circuit court precedent addressing a public employee's candidacy rights,
and so we do not duplicate that effort in our discussion. However, for the
purpose of illustrating the opposing view, we will single out the recent Eleventh
Circuit case, Randall v. Scott, 610 F.3d 701(11th Cir. 2010), which advises that
"[p]recedent in the area of constitutional protection for candidacy [is] best
described as a legal morass," 25 an observation with which we agree. In
Randall, Scott was elected a district attorney, and named Randall as her chief
of staff. After his appointment, Randall decided to run for Chairman of the
county board of commissioners. Serious dissention developed between Scott
and Randall when Scott's husband decided also to pursue the office. Randall
nevertheless persisted in running, and under pressure from her husband,
° Scott fired Randall. In addressing Randall's § 1983 claim against Scott, the
Eleventh Circuit concluded "[e]ven though Clements does not make clear the
25 Citing Cutcliffe v. Cochran, 117 F.3d 1353, 1360 (11th Cir. 1997) (Harris,
Senior U.S. District Judge sitting by designation and specially concurring) ("Is there
confusion in this area of law? Members of the Supreme Court are among those who
have expressed their belief that there is, and my study of the subject matter leads me
to the same conclusion.").
21
degree of constitutional scrutiny required for candidacy restrictions, the Court
does suggest that political candidacy is entitled to at least a modicum of
constitutional protection," 610 F.3d at 712, and that lain interest in
candidacy, and expression of political views without interference from state
officials who wish to discourage that interest and expression, lies at the core of
values protected by the First Amendment." Id. at 713. 26
Upon our review of these competing positions, and for the reasons
further discussed below, we decline to follow the Eleventh Circuit's reasoning
in Randall,27 and will instead endorse the view favored by the Sixth and
Seventh Circuits, and previously endorsed by this Court in Crutchfield .
D. Additional Considerations
Our continued approval of Crutchfield and our corresponding rejection of
Randall and similar cases is strengthened by the observation that the courts
adhering to the Randall view have failed to explain, by example or otherwise,
exactly what is the "modicum" of First Amendment interests that rests within
the act of seeking elective office. They seem unable or unwilling to explain
exactly what "some level" of "qualified" First Amendment rights is. A
constitutional right is not an amorphous, vaporous thing, the presence of
which may be sensed, but cannot be articulated or defined. We suggest that
26
The defendants did not seek certiorari on this holding.
We note that Randall has received scholarly criticism for its interpretation of
Bullock and Clements. See Kevin C. Quigley, Comment, Wading Through the "Morass":
The Eleventh Circuit Recognizes a Right to Candidacy in Randall v. Scott, 52 B.C. L.
Rev. E. Supp. 185 (2011), http:// www.bc.edu/bc1r/esupp_2011/15_quigley.pdf.,
which concludes that "the Eleventh Circuit's novel approach, although well
intentioned, is only tenuously grounded in Supreme Court precedent[,]" id. at 185,
and "[n]either [Bullock nor Clements] supports the proposition that candidacy enjoys
per se constitutional protection." Id. at 189.
27
22
what is sensed in these decisions is not a First Amendment right or interest in
being a candidate, but simply the fact that candidacy ordinarily becomes a
complex activity in which candidates, like any citizen, may engage in actions
that are explicitly protected by the First Amendment. Candidates speak and
they publish. They assemble with others, they practice their religion, and they
might even petition the government for redress of grievances. No one suggests
that in becoming a candidate, such activities lose First Amendment protection.
But the essential act of becoming a candidate and the condition of being a
candidate for elective office are, in the final analysis, no more of an exercise of
First Amendment liberty than applying for a job.
Stated differently, standing alone, candidacy is not expressive speech or
conduct, nor does it alone implicate acts of association or assembly. Stripped
of its accompaniment of expressive messages and assemblages of supporters
(which is the situation we consider), candidacy alone communicates nothing of
substance. Of course, while the status of candidacy itself enjoys no First
Amendment protection, the candidate's activities and associations, the
organizing of supporters, and speaking and publishing on matters of public
interest, receive the highest degree of First Amendment protections.
Elrod v.
Burns, 427 U.S. 347, 356 (1976). ("Political belief and association constitute
the core of those activities protected by the First Amendment."); Buckley, 424
23
U.S. 1, 15 ("The First Amendment protects political association as well as
political expression."). 28
Few, if any, legitimate acts are so highly regulated by state law as
becoming a candidate for public office. Every state has constitutional and
statutory qualifications for public office that were purposefully designed to limit
or restrain the ability of persons to run for public office. Laws commonly, if not
universally, impose upon candidacy geographic or residential restrictions, age
and citizenship restrictions, and sometimes educational or experiential
restrictions. Such laws effectively control the eligibility for elective office
without any abridgment of First Amendment liberty because running for
elective office is simply not among the rights secured by the First Amendment.
That candidacy has always been heavily burdened by state regulation in
no way suggests that the state has unfettered power to obstruct an individual's
desire to seek elective office. But, in our view, the protection afforded by the
United States Constitution to persons who desire to run for office is not derived
from the First Amendment; rather, as illustrated by Bullock and Clements, it is
28 Justice Abramson asserts that candidacy is "seemingly one of the most basic
forms of speech a democratic society fosters," and that Cook's candidacy is speech on
a matter of public importance because it carries the "nascent message" that she would
be a better county clerk than Popplewell. It is not candidacy itself however, that
constitutes the "message." There are enumerable reasons why one may choose to be a
candidate. Some candidates seek only the prestige, power, and trappings of the office,
with little concern for who is the better public servant. Others, with no real
expectation of winning the office, run to garner attention to promote themselves in
other undertakings, such as to attract clients for their law practice. Candidacy may
be the mechanism that bears their messages, but it is not the message. Words written
on a sheet of paper may be expressive communication, but the blank paper itself is
not. For an interesting discussion of the point, in a different context, see Nevada
Com'n on Ethics v. Carrigan, 131 S.Ct. 2343 (2011) (Explaining why a legislative vote is
not expressive conduct); Cf. Rumsfeld v. Forum for Academic and Institutional Rights,
Inc., 126 S.Ct. 1297, (2006) (expressive value was "not created by the conduct itself
but by the speech that accompanies it").
24
found in the Equal Protection Clause of the Fourteenth Amendment. The
Equal Protection Clause requires that state policies, including statutes and the
employment policies of governmental agencies, that differentiate between those
who may become a candidate for elective office and those who may not must
bear a rational relationship to a legitimate state purpose. Mobley v. Armstrong,
978 S.W.2d 307, 309 (Ky. 1998). Notably for our review,. Cook does not assert
that her firing violated Equal Protection principles.
E. Conclusion
In summary, we hold that the First Amendment affords no constitutional
protection to candidacy for political office per se. Upon this determination, it
necessarily follows that Cook has failed to state a claim under 42 USC § 1983.
Accordingly, we conclude that the circuit court was correct in awarding
summary judgment to Popplewell and Russell County, and dismissing Cook's
lawsuit.
V. COOK HAS FAILED TO ALLEGE THE REQUISITE GROUNDS OF AN
OFFICIAL CAPACITY SUIT
While the constitutional issue presented by this case is significant and
dispositive, there is a further reason for affirming the trial court's summary
judgment. As noted above, a § 1983 claimant must establish both that she has
been deprived of a federal right and that the defendant is responsible for the
deprivation. Under the statute, government bodies are not subject to vicarious
liability for the torts of their agents.
Monell v. N.Y. City Dept. of Social Services,
436 U.S. 658, 691 (1978); Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79
(1986). For tortious conduct to provide a basis for a government body's § 1983
25
liability, the tort—the deprivation of the plaintiff's right—must have been
committed pursuant to the government body's official policy. Id. This does not
mean that the government body can never be found liable for a single decision
meant to apply only to immediate circumstances.
Pembaur, 475 U.S. at 480
("liability may be imposed [under § 1983] for a single decision"). Nor does it
mean that every decision by an officer of the government automatically
subjects the government to liability. Rather:
[m]unicipal liability attaches only where the decisionmaker
possesses final authority to establish municipal policy with respect
to the action ordered. The fact that a particular official—even a
policymaking official—has discretion in the exercise of particular
functions does not, without more, give rise to municipal liability
based on an exercise of that discretion. . . . The official must also
be responsible for establishing final government policy respecting
such activity before the municipality can be held liable.
Id. at 481-83 (citation and footnotes omitted). A suit against a person in his or
her official capacity is a suit against the office and not the person. To maintain
her suit against Russell County, Cook had to show that Popplewell had final
authority to establish official county policy with respect to the hiring of her
deputy clerks. This Cook has failed to do.
In her reply brief, Cook asserts that because Popplewell was acting
"within her purview" as County Clerk when she discharged Cook, she was
acting as county policymaker. But, as the United States Supreme Court has
stated, the mere fact that the official has discretion in the exercise of particular
functions does not by itself subject the County to liability. Id. at 481-82. The
official must have policymaking authority as well. Id. As the source of that
authority, Cook refers us to KRS 64.530, which provides for the compensation
of county officers, employees, deputies and assistants, and members of the
26
fiscal court. Subsection (3) of the statute provides that the fiscal court shall fix
the maximum amount officers may expend for deputies and assistants, but
that the officer may determine the number of deputies and assistants to be
hired and the individual compensation of each. While this statute is a source
of the discretion Popplewell exercised when she discharged Cook, it says
nothing about the County Clerk's authority to establish county hiring policies,
such as a policy prohibiting deputy clerks from running for elective office. If
anything, it suggests that that authority remains in the fiscal court along with
its ultimate authority over the size of the County Clerk's budget. Indeed,
Cook's complaint cites the Russell County Administrative Code as the source of
County employment policies. Be that as it may, it remains that Cook has only
shown that Popplewell had discretion to hire and fire her deputies, which is not
enough to establish official capacity or county liability.
See also Caudill , 431
F.3d at 900 (Sixth Circuit held that the plaintiffs' failure to offer evidence that
the Boyd County Clerk had the authority to establish county hiring policy
supported summary judgment in favor of Clerk sued in her official capacity). 29
Forthisean,wcoviedtharlu'smyjdgent
was appropriate.
29
In Caudill, the newly elected Boyd County Clerk fired three deputy clerks who
had supported her opponent in the election. The Sixth Circuit held that "patronage
dismissals of Kentucky deputy county clerks with routine duties violates (sic) the U.S.
Constitution." 431 F.3d at 910. However, the County Clerk could not be held liable in
her official capacity because there was no evidence she had final policymaking power
with respect to the hiring/rehiring of deputy clerks "for political or patronage reasons."
Id. at 915. The Court did remand the claims against the County Clerk in her
individual capacity to the trial court because she was not entitled to qualified
immunity given the clearly established law prohibiting patronage dismissal of clericaltype workers.
27
VI. COOK'S FOURTEENTH AMENDMENT CLAIM DOES NOT PERMIT
REVIEW
Finally, Cook asserts that if the First Amendment does not protect her
interest in being a candidate, then the Due Process Clause of the Fourteenth
Amendment does. We decline to address this issue, as Cook has devoted a
mere two paragraphs of her brief to this very large question and has referred us
only to a single federal District Court opinion in support of her Due Process
Clause assertion. It is not clear from Cook's brief whether she is asserting a
substantive or a procedural right, but if procedural she has not indicated what
process was due. Civil Rule 76.12(4)(c)(v) requires the parties' opening briefs to
include "ample supportive references to the record and citations of authority
pertinent to each issue of law." (emphasis supplied). Cook's cursory
Fourteenth Amendment Due Process Clause argument does not comply with
the rule, and for that reason, we decline to address it.
Cf. Doherty v. City of
Chicago, 75 F.3d 318, 324 (1996) (discussing the requirements of the
comparable federal appellate rule).
VII. CONCLUSION
For the reasons explained, we affirm the judgment of the Russell Circuit
Court awarding summary judgment in favor of Popplewell and Russell County.
Cunningham, Schroder, and Scott, JJ., concur. Abramson, J., concurs
in result only by separate opinion in which Minton, C.J., and Noble, J., join.
ABRAMSON, JUSTICE, CONCURS IN RESULT ONLY: I concur with the
majority's discussion of many of the issues raised by this appeal, and I concur
in its ultimate conclusion that Appellant Stacie Cook is not entitled to relief
28
under 42 U.S.C. § 1983. I write separately because I cannot agree that
candidacy, running for office, seemingly one of the most basic forms of speech
a democratic society fosters, enjoys no protection under the First Amendment.
That nevertheless is the distinctly minority view the Court today adopts.
Because deciding that constitutional question is not necessary to our decision,
and because I strongly disagree with the majority's reading of the First
Amendment, I respectfully decline to join the majority opinion and concur in
result only.
RELEVANT FACTS
As noted, Appellant Cook, a deputy clerk in the Russell County Clerk's
office, sought election to the office of County Clerk in opposition to her boss,
the incumbent County Clerk, Lisha Popplewell. Although there is some dispute
about precisely what occurred between the two women, there is no dispute that
shortly after Cook began making known her fledgling candidacy by informing
co-workers of her decision and soliciting support from her customers,
Popplewell discharged her. Eventually Cook brought suit in the Russell Circuit
Court under 42 U.S.C. § 1983. She alleged that Popplewell in her official
capacity as County Clerk and Russell County violated her rights under the
First Amendment to the United States Constitution when they retaliated
against her for seeking office. Granting the defendants' motion for summary
judgment, the trial court ruled, among other things, that Cook's candidacy did
not implicate the First Amendment and so could not provide the basis for §
1983 relief. When the Court of Appeals upheld that ruling, relying heavily on
the Sixth Circuit Court of Appeals' opinion in Carver v. Dennis, 104 F.3d 847
29
(6th Cir. 1997), Cook sought and was granted discretionary review in this
Court.
ANALYSIS
I. Because There Are Other Grounds for Disposition of the Case, the Issue
of the Constitutional Protection Accorded Candidacy Need Not Be
Decided.
Although we accepted review of this case in large part because of the
constitutional question it posed, and although that is the question upon which
both the parties and the courts below focused their attention, it is a "longobserved principle that Constitutional adjudication should be avoided unless
strictly necessary for a decision in the case."
Spees v. Kentucky Legal Aid,
274
S.W.3d 447, 449 (Ky. 2009) (citation and internal quotation marks omitted);
Camreta v. Greene,
U.S.
, 131 S. Ct. 2020, 2031, 179 L. Ed.2d 1118
(2011) (there is a "'longstanding principle of judicial restraint . . . that courts
avoid reaching constitutional questions in advance of the necessity of deciding
them."') (quoting from Lyng v. Northwest Indian Cemetary Protective Assn., 485
U.S. 439, 445 (1988)). While the constitutional protection to be accorded
candidacy is appropriately addressed, there is no need to decide this important
constitutional question in the case before us, because there are nonconstitutional grounds and less far reaching grounds precluding the relief Cook
seeks, regardless of whether candidacy is or is not constitutionally protected.
In the first place, as the majority observes, Cook pursued an official
capacity theory of § 1983 liability, but she failed to allege facts which would
permit a finding that she was discharged pursuant to official policy, a
necessary element in an "official capacity" cause of action. The trial court
30
offered this as an alternative reason for granting the defendants' summary
judgment motion and we could properly affirm its ruling on that ground alone.
In the second place, even if Cook's candidacy enjoyed a measure of
constitutional protection, as I believe it does, that protection does not extend to
campaign activities disruptive of the workplace. By Cook's own admission she
campaigned while at work and during her County work time. Indeed, in a
small public office such as the Russell County Clerk's office, it may well have
been impossible for Cook not to inject her candidacy into the workplace.
Regardless, the fact that she did justified her discharge. The discharge was
not, therefore, a violation of her constitutional rights, however construed, and
so deciding this particular case does not require a definitive decision on the
constitutional issue the Court takes up.
II. Candidacy Enjoys Qualified First Amendment Protection.
Because Cook is not entitled to 42 U.S.C. § 1983 relief for the reasons I
have briefly summarized, I concur in the Court's decision to the extent that it
reaches that result. I do not concur in the majority's constitutional analysis,
however, and so turn now to the difficult question of candidacy's status under
the First Amendment. I agree with those several courts which have recognized
candidacy's First Amendment implications, but have held that the right of state
employees to be candidates is subject to reasonable restriction in light of the
State's compelling interest in the efficient and non-partisan provision of
governmental services.
Under what has come to be referred to as Pickering [v. Board of
Education, 391 U.S. 563 (1968)]/Branti [v. Finkel, 445 U.S. 507 (1980)]
31
analysis, 30 to prevail on a retaliation claim stemming from the exercise of First
Amendment rights,
an employee must prove that the conduct at issue was
constitutionally protected, and that it was a substantial or
motivating factor in the termination. If the employee discharges
that burden, the government can escape liability by showing that it
would have taken the same action even in the absence of the
protected conduct. . . . And even termination because of protected
speech may be justified when legitimate countervailing government
interests are sufficiently strong.
Board of County Comm'rs v. Umbehr, 518 U.S. 668, 675 (1996).
Where the conduct at issue can be deemed speech for First Amendment
purposes, the United States Supreme Court has explained that the employee
must show that he or she spoke as a citizen on a matter of public concern, as
opposed to speech addressing merely personal matters—such as intra-office
grievances—or speech owing its existence to the employee's professional
responsibilities. Garcetti v. Ceballos, 547 U.S. 410 (2006). As the quote from
Umbehr indicates, moreover, even speech on matters of public concern may be
Pickering involved a school teacher who was dismissed after he expressed his
opinion on school funding issues in a letter to the newspaper. Justice Marshall noted
that "the problem in any case is to arrive at a balance between the interests of the
teacher, as a citizen, in commenting upon matters of public concern and the interest
of the State, as an employer, in promoting the efficiency of the public services it
performs through its employees." 391 U.S. at 568.
30
an employee's private political beliefs would
In Branti, the Court stated
interfere with the discharge of his public duties, his First Amendment rights may be
required to yield to the State's vital interest in maintaining governmental effectiveness
and efficiency." 445 U.S. at 517. The Branti Court concluded it would "undermine,
rather than promote, the effective performance of an assistant public defender's office
to make his tenure dependent on his allegiance to the dominant political party." Id. at
519-20. In so ruling, the Court noted that "the primary, if not the only, responsibility
of an assistant public defender is to represent individual citizens in controversy with
the State." Id. The Court further observed: "This is in contrast to the broader public
responsibilities of an official such as a prosecutor. We express no opinion as to
whether the deputy of such an official could be dismissed on grounds of political party
affiliation or loyalty." 445 U.S. at 519 n. 13 (citation omitted).
32
restricted, if it impairs the government employer's efficient operation.
Connick
v. Myers, 461 U.S. 138 (1983) (citing Pickering v. Board of Education, 391 U.S.
563 (1968)). Recognizing the enormous variety of circumstances in which
these issues may arise, the Court has cautioned that each case requires a
particularized balancing of the competing interests and that the government
employer's burden in justifying a particular discharge will vary "depending
upon the nature of the employee's expression."
Connick, 461 U.S. at 150.
Where the conduct at issue implicates the employee's interest in
association and belief, the Court has held that, generally, adverse employment
actions for supporting or for failing to support a particular political party are
unconstitutional. Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445
U.S. 507 (1980); Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990). 31 The
same rule applies to adverse employment decisions based upon support of and
loyalty to a particular candidate as distinguished from a political party.
Jordan
v. Ector County, 516 F.3d 290 (5th Cir. 2008). The Supreme Court has
recognized an exception to the general rule, however, when "the hiring
authority can demonstrate that party affiliation is an appropriate requirement
for the effective performance of the public office involved."
Branti, 445 U.S. at
518 (recognizing party affiliation could be relevant to policymaking and
"confidential" positions such as aides to a governor who assist in writing
speeches, communicating with the press or conferencing with the legislative
branch).
31
A dismissal on these grounds is often referred to as a "patronage dismissal."
33
Many cases, of course, do not fall neatly into one category or the other,
but present instances of expression intermixed with elements of association or
belief. Such cases, the Supreme Court has indicated, may be accommodated
by the same sort of "reasonableness analysis" implicit in the approaches
mandated by Pickering and Branti. O'Hare Truck Service, Inc. v. City of
Northlake, 518 U.S. 712, 719 (1996). See e.g., Rodriguez Rodriguez v. Munoz
Munoz, 808 F.2d 138 (1st Cir. 1986) (discussing the analysis of hybrid First
Amendment cases); McBee v. Jim Hogg County, Texas, 730 F.2d 1009 (5th Cir.
1984). (same).
Cook maintains that her expressed intention of seeking election to the
office of Russell County Clerk--her candidacy--implicates both her right to
speak on matters of public concern as well as her right to associate with her
political supporters and that her discharge violated those First Amendment
rights. Courts have approached such contentions warily, for, as the Court of
Appeals for the Eleventh Circuit recently observed, Ip}recedent in the area of
constitutional protection for candidacy can be best described as a legal
morass." Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010). Much of the
problem stems from the fact that the United States Supreme Court has never
addressed candidacy in the context of an employment action, such as this one,
where an employee's candidacy is alleged to have provoked employer
retaliation. Absent that direct precedent, the lower courts have sought to apply
cases from other contexts, most of them involving legislative or state
constitutional restrictions on candidacy, and most of them addressing equal
protection challenges. In that context, the U.S. Supreme Court has
34
emphasized the interrelatedness of candidates' rights and voters' rights and
has focused its concern on "the tendency of ballot access restrictions 'to limit
the field of candidates from which voters might choose.' Therefore, `[i]n
approaching candidate restrictions, it is essential to examine in a realistic light
the extent and nature of their impact on voters."' Anderson v. Celebrezze, 460
U.S. 780, 786 (1983) (quoting from Bullock v. Carter, 405 U.S. 134, 143 (1972).
Using that approach, the Court has struck down restrictions with a tendency
to exclude candidates who are independent of any political party or who
represent a minority party. Anderson; Illinois Elections Bd. v. Socialist Workers
Party, 440 U.S. 173 (1979); Bullock v. Carter; Williams v. Rhodes, 393 U.S. 23
(1968). Although focused on the rights of voters, these cases would seem to
recognize, implicitly at least, a candidate's own correlative rights of expression
and association. See, e.g., Illinois Elections Bd., 440 U.S. at 186 ("an election
campaign is a means of disseminating ideas as well as attaining political
office."); Anderson, 460 U.S. at 788 ("a candidate serves as a rallying-point for
like-minded citizens.").
On the other hand, the Supreme Court has recognized the strong interest
that States have in assuring the orderliness, integrity, and reliability of the
electoral process and in disqualifying individuals whose candidacy would
frustrate "legitimate state goals which are unrelated to First Amendment
values." Anderson, 460 U.S. at 788, n. 9. It has upheld, accordingly,
generally-applicable and evenhanded restrictions on candidacy reasonably
furthering those interests.
Clements v. Fashing, 457 U.S. 957 (1982); Storer v.
Brown, 415 U.S. 724 (1974).
35
Notably, in Clements, which upheld Texas constitutional provisions
limiting the right of certain state and federal office holders to seek election to
the Texas legislature during their current terms, the right to candidacy was
distinguished from the right to vote, and, for equal protection purposes, was
deemed to be of less constitutional import: "Far from recognizing candidaCy as
a 'fundamental right,' the Court observed,
we have held that the existence of barriers to a candidate's access
to the ballot 'does not of itself compel close scrutiny.' . . . Decision
in this area of constitutional adjudication is a matter of degree,
and involves a consideration of the facts and circumstances behind
the law, the interests the State seeks to protect by placing
restrictions on candidacy, and the nature of the interests of those
who may be burdened by the restrictions.
Clements, 457 U.S. at 963 (quoting from Bullock v. Carter, 405 U.S. 134, 143
(1972)). While, as discussed more fully infra, a few courts have seized on the
language rejecting the proposition that candidacy is a "fundamental right" to
conclude that candidacy is entitled to no First Amendment protection
whatsoever, Clements itself suggests the contrary. Having decided the case on
equal protection grounds, the Court briefly addressed the alternative First
Amendment argument by noting, "We have concluded that the burden on
appellees' First Amendment interests in candidacy are so insignificant that the
classifications [of the Texas constitutional provisions] may be upheld consistent
with traditional equal protection principles. The State's interests in this regard
are sufficient to warrant the de minimis interference with appellees' interests in
36
candidacy." Id. at 971-72 32 (emphasis supplied). See also Randall v. Scott, 610
F.3d at 712 ("Even though Clements does not make clear the degree of
constitutional scrutiny required for candidacy restrictions, the Court does
suggest that political candidacy is entitled to at least a modicum of
constitutional protection.")
Attempting to apply these non-employment cases to the employment
arena, where the State is acting not as sovereign with an interest in regulating
the election process, but as employer with an interest in the efficient provision
of governmental services, several courts have recognized that while candidacy
may not be a fundamental right eliciting the sort of exacting judicial scrutiny
accorded the right to vote, it is, nevertheless, an important right with First
32 The majority disregards this portion of the Supreme Court's opinion and its
apparent recognition of "First Amendment interests in candidacy," and instead
purports to find the Court's intent to deny candidacy First Amendment protection
from the sentence, "Far from recognizing candidacy as a 'fundamental right,' we have
held that the existence of barriers to a candidate's access to the ballot 'does not of
itself compel close scrutiny."' 457 U.S. at 963. Since "no right" is about as far from
"fundamental right" as you can get, reasons the majority, Justice Rehnquist's use of
the phrase "far from" should be understood as implying that candidacy enjoys no First
Amendment protection. Aside from the fact that the precedent to which Justice
Rehnquist refers says no such thing and so belies the majority's inference, the real
contrast being made is that between strict scrutiny, on the one hand, the level of
review applied to legislation burdening fundamental rights, and, on the other hand, a
less exacting, more deferential level of review applied to legislation that does not
burden fundamental rights. In rejecting the appellants' invocation of strict scrutiny,
Justice Rehnquist does indeed point to strict scrutiny's "far from" opposite—a sort of
rational basis review—as all that, under the facts presented, precedent required. The
Supreme Court's application of a less exacting level review does not mean, however,
that the appellant-candidates had no rights, but rather that burdens on those rights
would be upheld if they could be deemed reasonably to further legitimate state
interests.
Even less convincing is the majority's foray into constitutional history. Suffice
it to say that nowhere in United States Civil Service Commission v. National Association
of Letter Carriers AFL CIO, 413 U.S. 548 (1973), is there any suggestion that candidacy
is on a different constitutional footing from any of the other partisan political
activities, such as fund raising and campaigning on behalf of others, clearly protected
by the First Amendment but nevertheless subject to the Hatch Act's restrictions.
-
37
Amendment implications. Accordingly, in most cases involving claims of
retaliatory discharge because of the employee's candidacy, the courts have
engaged in some sort of Pickering/Branti balancing to assess whether the
discharge was justified notwithstanding its encroachment upon the employee's
First Amendment right. See, e.g., Randall v. Scott, 610 F.3d at 710-11
(candidacy enjoys at least some First Amendment protection; district attorney's
reason for dismissing candidate-employee (running against her husband for
county commissioner) was purely personal reason that did not survive Branti
balancing) 33 ; Jordan v. Ector County, 516 F.3d at 297-98 (deputy clerk's
candidacy involves both speech on matter of public concern and political
affiliation and caused no work disruption; jury damage award affirmed);
Jantzen v. Hawkins, 188 F.3d 1247, 1257 (10th Cir. 1999) (deputy sheriff's
candidacy against his boss was a manner of political speech on matter of
public concern but his candidacy interest did not outweigh state's interest in
effective law enforcement); Wilbur v. Mahan, 3 F.3d 214, 215-16 (7th Cir. 1993)
(deputy sheriff's candidacy against his boss is a form of political speech but
dismissal justified because deputy occupies a policymaking position as
described in Branti); Finkelstein v. Bergna, 924 F.2d 1449, 1453 (9th Cir. 1991)
(unsuccessful candidacy of deputy district attorney is a protected
communicative act but district attorney had qualified immunity justifying
summary judgment in his favor).
33 Significantly the Eleventh Circuit stated: "We agree that if Randall decided to
run against Scott [his boss] for Clayton County District Attorney, Scott would have
good legal reason to discharge him due to the state's interest in office loyalty." 610
F.3d at 714.
38
The balancing approach employed in these cases is in accord with the
balancing of interests the Supreme Court applied in the ballot access cases
discussed above. It is also in accord with United States Civil Service
Commission v. National Association of Letter Carriers AFL CIO, 413 U.S. 548
-
(1973) and Broadrick v. Oklahoma, 413 U.S. 601 (1973), in which the Supreme
Court upheld the Hatch Act and its state law counterparts. With the Hatch
Act, Congress prohibited partisan political activity by virtually all federal
employees. In Letter Carriers, the Court discussed the government's different
roles as sovereign and as employer and applied Pickering as the appropriate
means in the employment context for determining whether the government's
interest in developing a non-partisan, merit-based work force justified the
Hatch Act's far-reaching restrictions on employee First Amendment activity.
413 U.S. at 564.
As noted, the trial court in this case did not engage in any sort of
Pickering/ Branti balancing of interests, but instead, relying on Carver v.
Dennis, 104 F.3d at 847, ruled that Cook's candidacy enjoyed no constitutional
protection whatsoever and so could not provide the basis for § 1983 relief. In
Carver, the Sixth Circuit upheld the dismissal of a deputy clerk who had
declared her candidacy for County Clerk in opposition to her boss. The two
women were the only employees in the County Clerk's office and apparently
worked at close quarters. Quoting the language from Clements v. Fashing, 457
U.S. at 963, referred to above, that candidacy is not a "fundamental right," the
Sixth Circuit opined that restrictions on candidacy unrelated to the candidate's
political views do not implicate the First Amendment. It was within the County
39
Clerk's prerogative, that federal appellate Court believed, to adopt an office
policy forbidding all employees (i.e., the lone deputy clerk) to run for Clerk, and
the deputy clerk's dismissal could be deemed to imply the application of just
such a policy. Because in the Court's view the deputy clerk's dismissal
stemmed not from any message her candidacy might convey, but solely from
the implicit ban on candidacy itself, the Court held there was no protected
interest on which to premise a § 1983 claim. On the facts of the case,
moreover, 34 the Court believed that the deputy clerk's opposition could be
deemed insubordinate, and the County Clerk was under no First Amendment
obligation to "nourish the viper in the nest." 104 F.3d at 853.
Although the Sixth Circuit continues to follow Carver, see Greenwell v.
Parsley, 541 F.3d 401 (6th Cir. 2008), it appears that the Seventh Circuit is the
only other Circuit to have expressed the view that candidacy as such enjoys no
First Amendment protection. Newcomb v. Brennan, 558 F.2d 825, 828 (7th Cir.
1977) ("plaintiff's interest in seeking office, by itself, is not entitled to
constitutional protection.") 35 Several others, as noted above, have held that
dismissals of state employees who have announced candidacy for office, like
other alleged First Amendment retaliations, are appropriately analyzed under
Pickering and Branti. We, of course, look to the Sixth Circuit with a great deal
of respect, but as the Court of Appeals noted, we are not bound by Sixth
34 The Carver opinion emphasizes repeatedly that Carver was the "sole
employee" and she was trying to take her boss's job.
35 As the Court of Appeals noted in this case, several Courts, this one included,
have applied rational basis review to legislative ballot restrictions on the ground that
candidacy is not a fundamental right entailing strict scrutiny. See, e.g.,
Commonwealth ex rel. Stumbo v. Crutchfield, 157 S.W.3d 621 (Ky. 2005). The absence
of a fundamental right, however, does not mean that there is no right at all.
40
Circuit precedent. Commonwealth v. Kentec Coal Co., Inc., 177 S.W.3d 718 (Ky.
2005); ASARCO Incorporated v. Kadish, 490 U.S. 605 (1989) (noting state court
authority to interpret federal law); United States ex rel. Lawrence v. Woods, 432
F.2d 1072 (7th Cir. 1970) (opining that because only the Supreme Court has
authority to review state court interpretations of federal law, only its decisions
are binding on those courts). Having carefully considered First Amendment
precedent, I am convinced that Carver, and now this Court, relies unduly on a
strained and dubious reading of Clements v. Fashing, a single opinion
addressing facts far different from those before us. Moreover, both Carver and
the majority in this case disregard the Supreme Court's Pickering and Branti
line of decisions recognizing that while the First Amendment rights of public
employees are subject to significant curtailment, they nevertheless remain
protected against arbitrary or unreasonable state interference.
The majority justifies its disregard of that precedent by invoking what it
refers to as "candidacy per se," a sort of metaphysical "candidacy" divested of a
real candidacy's speech and associational attributes. Since "candidacy" in this
rarefied sense excludes, by definition, any sort of communicative activity, it
cannot, the Court concludes, implicate the First Amendment. The fact that
candidacy may be regulated as such, however, without regard for any
particular candidate's views or message, does not mean that "candidacy"
somehow exists independently of real candidates, a sort of content-less ideal to
which candidates attach their particular concerns. It means only that
candidacy is like other forms of speech, which likewise are subject to
reasonable, viewpoint neutral regulation. There is no such thing as
41
"candidacy" apart from real candidates' speech and associational aspirations,
and there is no regulation of candidacy that does not bear upon these
interests. The Court of Appeals for the First Circuit has illustrated this point
nicely by identifying several ways in which candidacy as such implicates First
Amendment concerns:
The fact of candidacy alone may open previously closed doors of
the media. The candidate may be invited to discuss his views on
radio talk shows; he may be able to secure equal time on television
to elaborate his campaign program; the newspapers may cover his
candidacy; he may be invited to debate before various groups that
had theretofore never heard of him or his views. In short, the fact
of candidacy opens up a variety of communicative possibilities that
are not available to even the most diligent of picketers or the most
loyal of party followers.
Mancuso v. Taft, 476 F.2d 187, 196 (1st Cir. 1973) (modified on other grounds in
Magill v. Lynch, 560 F.2d 22 (1st Cir. 1977)). See also Buckley v. Valeo, 424
U.S. 1 (1976) (discussing how even neutral restrictions that affect a candidate's
access to expressive outlets strongly implicate the First Amendment).
Similarly, as a focal point in the public debate, a candidate enjoys
opportunities for association unavailable to non-candidates.
Even if there were meaning in the Court's "candidacy per se" distinction,
the distinction would not apply here because, to the extent Cook was
discharged because of her candidacy, it was not because she was running for
public office as such, but because her particular candidacy was in opposition to
Popplewell. That particular candidacy thus expressed a nascent message on a
matter clearly of public concern: that Cook would be a good County Clerk and
a better one than her current boss, Popplewell. The burdening of that message
implicates Pickering and Branti, under the approach adopted by the majority of
42
federal courts, and so requires some modicum of justification.
Click v.
Copeland, 970 F.2d 106 (5th Cir. 1992). 36
Under Branti and the position the majority of courts have taken on this
issue, Cook's rival candidacy would justify her dismissal if the effective
performance of Cook's particular deputy clerk position required her to remain
politically loyal to and affiliated with Popplewell. In short, some government
employees' positions, by their very nature, involve such confidential
relationships or discretionary authority as to justify dismissal without regard to
evidence of the impact of the dismissed employee's conduct or political
affiliation on the operation of the office. However, in Caudill v. Hollan, 431 F.3d
900 (6th Cir. 2005), the U.S. Court of Appeals for the Sixth Circuit ruled that
deputy county clerks in Kentucky generally perform clerical duties and, thus,
do not wield the discretionary authority or provide the sort of confidential
advice on matters of policy that would justify their patronage dismissal. As
Popplewell has made no attempt to refute or to distinguish Caudill, which
appears well-taken on this point, I cannot say that Cook's dismissal was
justified under Branti's exception for certain employment positions.
Cook's dismissal would be justified under the Pickering balancing test,
however, if her candidacy interfered with the efficient functioning of the County
Clerk's office. In balancing the employee's interest as citizen in speaking on a
matter of public concern and the government's interest as employer in
36 Under Branti, public employees who are in positions not involving
"confidence" or policymaking cannot be dismissed simply for having supported the
"wrong" candidate. The majority position suggests an obvious query: why should that
rule not also apply when the "wrong" candidate happens to be the employee herself?
Murphy v. Cockrell, 505 F.3d 446 (6th Cir. 2007).
43
maintaining an efficient workplace, the Supreme Court has explained that
pertinent considerations include "the manner, time, and place of the
employee's expression," "the context in which the dispute arose," and "whether
the statement impairs discipline by superiors or harmony among co-workers,
has a detrimental impact on close working relationships for which personal
loyalty and confidence are necessary, or impedes the performance of the
speaker's duties or interferes with the regular operation of the enterprise."
Rankin v. McPherson, 483 U.S. 378, 388 (1987) (citations omitted).
Applying these factors, several courts have held or noted that a
subordinate's candidacy against his or her boss is so apt to be disruptive of a
small governmental office that preemptive dismissal or mandatory leave of
absence may be justified. Randall v. Scott, 610 F.3d at 714; Jantzen v.
Hawkins, 188 F.3d at 1258; Caruso v. De Luca, 81 F.3d 666, 670-71 (7th Cir.
1996); Bart v. Telford, 677 F.2d 622, 624-25 (7th Cir. 1982); Deemer v. Durell,
110 F. Supp.2d 1177, 1179-82 (S.D. Iowa 1999); Warren v. Gaston, 55 F.
Supp.2d 1230, 1236 (D. Kan. 1999).
In Click v. Copeland, 970 F.2d at 112-13 and Jordan v. Ector County, 516
F.3d at 299, on the other hand, the Fifth Circuit held that where the adverse
employment action was delayed and there was no evidence that the
subordinate's candidacy had in fact caused disruption in the office, the balance
tipped in favor of the employee's rights. In Murphy v. Cockrell, 505 F.3d 446,
453 (6th Cir. 2007), too, the Sixth Circuit held that mere office tension resulting
from a subordinate's rival candidacy and campaign speech, where there was no
44
evidence that the tension had impaired office functions, was not enough to
justify the subordinate's dismissal. Distinguishing Carver, the Court held:
The teaching of [the U.S. Supreme Court decisions in Bullock,
Clements and Connick] leads us to believe that if Murphy
supported another candidate in the race for Montgomery County
PVA other than Cockrell [her boss], such conduct would be
protected by the First Amendment. In fact, if Murphy had simply
actively campaigned against Cockrell, but had not become a
candidate herself, her speech would be protected. Cockrell argues
that the fact that Murphy was a candidate, and supported herself
as such, is reason enough under Carver to justify Murphy's
termination. We decline to extend Carver in such a manner.
Carver itself distinguished cases in which candidates had been
singled out or treated differently based on their political viewpoints
or expressions, noting that Carver was dismissed solely based on
the fact of his [sic] candidacy, not his [sic] political views. We
expressly recognized in Carver that while the mere fact of
candidacy was not constitutionally protected, the expression of
one's political belief still fell under the ambit of the First
Amendment. Accordingly, we now hold that the fact that Cockrell
fired Murphy due to Murphy's political speech during the course of
her campaign-rather than the mere fact of Murphy's candidacy-is
enough to trigger protection under the First Amendment.
505 F.3d at 451.
While Cook's fledgling candidacy may have given rise to disruptive
tension at the Russell County Clerk's Office, which comprises two small
branches, one in Jamestown and the other in Russell Springs, the record is not
sufficiently developed to draw that conclusion. 37 Popplewell maintains,
moreover, that she dismissed Cook not because her candidacy disrupted the
office, but because of poor work performance. Nevertheless, in Cook's
deposition, she admits that while at work she campaigned, telling County Clerk
customers that she was running for Clerk and asking for their support, and
37 The record does reflect that about two weeks before Cook was terminated she
was transferred from the Russell Springs office to the County Clerk's main office in
Jamestown where Popplewell worked daily.
45
discussing her campaign with co-workers. Clearly that is activity itself
disruptive of the office's appropriate functions and virtually certain to engender
conflict and distraction. 38 Cook's dismissal to curtail and to forestall office
efficiency problems was justified under Pickering, and thus the trial court's
summary judgment may be affirmed on that ground. While in my view this is
the better approach to the constitutional question the Court takes up, the fact
remains that under either approach the result is the same, and we should
therefore refrain from choosing.
Two other points warrant some discussion. First, the majority deems
itself bound to the "no right to candidacy" position by Corn. ex rel. Stumbo v.
Crutchfield, 157 S.W.3d 621 (Ky. 2005), in which this Court addressed an equal
protection challenge to Kentucky Revised Statute (KRS) 160.180, an antinepotism statute disqualifying as candidates for seats on the board of
education persons with relatives employed by the school district. At the outset
of its analysis the Crutchfield Court discussed the appropriate level of judicial
scrutiny:
The initial inquiry is to determine what standard of scrutiny
applies when testing the constitutionality of KRS 160.180. . . .
Governmental classifications that do not target suspect classes or
groups or fundamental interests are subject only to rational basis
review. . . . The challenged statute does not affect a suspect
Campaigning in a government office through conversations with the public or
co-workers is indisputably disruptive. See, e.g., Jordan v. Ector County, wherein the
Fifth Circuit, engaging in Pickering balancing, stated: "We need not pause long on the
balancing, for there is no record evidence that Jordan's political activities caused
disruptions that would justify termination; Defendants concede the evidence of
disruption is "scant." Jordan's political activities constitute core First Amendment
activity, and there is no evidence that any campaigning or electioneering occurred at
work or on County time Morgan testified that Jordan was helpful, honest, hard
working, and capable." 516 F.3d at 299.
38
46
class. . . . It does not inflict injury to Appellee's right to candidacy,
because no such constitutional status exists. . . . Therefore, a
rational basis test is the appropriate constitutional standard.
157 S.W.3d at 623-24 (citations omitted). Clearly, all the Crutchfield. Court
needed to say, and in my view all it intended to say, was that candidacy is not
a fundamental right necessitating strict scrutiny. The United States Supreme
Court has said as much. To the extent that the Crutchfield Court meant to say
more than that, the opinion is dicta and should not be thought to apply to this
very different set of facts. There is reason to believe, however, that the Court
did not mean to say more. The case the Crutchfield Court cited for its "no such
constitutional status exists" statement is Bullock v. Carter, 405 U.S. 134
(1972), in which the Supreme Court addressed an equal protection challenge to
certain Texas filing fee statutes. Addressing the appropriate standard of
review, the Court observed that
[t]he initial and direct impact of filing fees is felt by aspirants for
office, rather than voters, and the Court has not heretofore
attached such fundamental status to candidacy as to invoke a
rigorous standard of review. . . . [T]he Texas system creates
barriers to candidate access to the primary ballot, thereby tending
to limit the field of candidates from which voters might choose.
The existence of such barriers does not of itself compel close
scrutiny.
405 U.S. at 142-43. With all due respect, my colleagues in the majority cannot
seriously claim to find in that passage any hint, much less an unambiguous
declaration, that candidacy enjoys no First Amendment protection. The
Crutchfield Court could not either, and I would not attribute to it any such
intent.
Finally, the majority declares itself unwilling to recognize a right as
seemingly vague as a right to candidacy. In short, if there is such a right, why
47
has no one been able to say what it is? What the majority takes for uncertainty
and vagueness, however, is rather the caution with which courts appropriately
proceed when sailing in uncharted constitutional waters. As noted above,
constitutional rulings are to be avoided if possible, and a corollary of that
principle is that if a ruling is required it should be as narrow as possible. This
is a caution, moreover, insisted upon by the Supreme Court. As noted above,
for example, in Clements v. Fashing the Court rejected the idea of "litmus paper
tests" for constitutional rights, and explained instead that
[d]ecision in this area of constitutional adjudication [restrictions on
candidacy] is a matter of degree, and involves a consideration of
the facts and circumstances behind the law, the interests the State
seeks to protect by placing restrictions on candidacy, and the
nature of the interests of those who may be burdened by the
restrictions.
457 U.S. at 963 (citations omitted). This same insistence on careful, case-bycase balancing of interests recurs throughout the Pickering and Branti line of
cases. Although this approach does not result, at least not in the short term,
in the sort of bright-line rules the majority desires, it does allow the law to
evolve in a thoughtful and responsible manner. As the cases discussed above
show, this approach does not rely on absolutist assertions or absolutist denials
of candidacy rights. It recognizes rather, as common sense suggests, that our
citizens have a right, protected by the First Amendment, to run for office. It is
a right stronger in some circumstances than others and a right subject to
numerous countervailing interests. It is a right nonetheless, and so at the very
least, is not to be denied arbitrarily. A compelling example of arbitrariness is
Randall v. Scott, wherein an assistant prosecutor was dismissed solely because
he was running for county commissioner, a position his boss's spouse also
48
intended to seek. Clearly, this dismissal was based only on the employer's
personal interest, an interest that would not justify encroachment on the right
to candidacy under a Pickering/ Branti analysis. Under the Court's ruling
today, however, a similar employee in Kentucky would have no redress in our
state courts because the majority has concluded that a right to candidacy is
simply not protected by the First Amendment.
CONCLUSION
In sum, because Cook has not adequately alleged an "official capacity"
cause of action, and because her work-place campaigning would not be
protected under any reading of the First Amendment, I would affirm the
summary judgment dismissing her suit on these grounds and leave for another
day any further delineation of candidacy's First Amendment status. The Court
having reached that question, however, I do not join the majority's conclusion
that "candidacy per se" has no First Amendment implications. The majority
disregards a growing body of authority under the Supreme Court's Pickering
and Branti decisions and adopts a minority view that has attracted few
adherents since it was first articulated twenty years ago. Respectfully,
therefore, I concur in the result the Court reaches, but not in its opinion.
Minton, C.J., and Noble, J., join.
49
COUNSEL FOR APPELLANT:
James E. Keller
Joseph H. Miller
Huston Barrow Combs
Gess, Mattingly & Atchison, PSC
201 West Short Street
Lexington, KY 40507-1269
COUNSEL FOR APPELLEES:
Arden Winter Robertson Huff
Attorneys Services of KY, PLLC
P.O. Box 627
Monticello, KY 42533
50
]]>
