Cook v. Popplewell

• Decision Date: 22 December 2011
• Docket Number: No. 2009–SC–000341–DG.,2009–SC–000341–DG.
• Citation: 394 S.W.3d 323
• Parties: Stacie L. COOK, Appellant v. Lisha POPPLEWELL, in her Capacity as County Clerk of Russell County, Kentucky and Russell County, Kentucky, Appellees.
• Court: United States State Supreme Court — District of Kentucky

394 S.W.3d 323

Stacie L. COOK, Appellant

v.Lisha POPPLEWELL, in her Capacity as County Clerk of Russell County, Kentucky and Russell County, Kentucky, Appellees.

No. 2009–SC–000341–DG.

Supreme Court of Kentucky.

Dec. 22, 2011.

James E. Keller, Joseph H. Miller, Huston Barrow Combs, Gess, Mattingly & Atchison, PSC, Lexington, KY, Counsel for Appellant.

Arden Winter Robertson Huff, Attorneys Services of KY, PLLC, Monticello, KY, Counsel for Appellees.

Opinion of the Court by Justice VENTERS.

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 Com. 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 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. ¹ 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. 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. 356, 375–81, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990); Martinez v. California, 444 U.S. 277, 284, 100 S.Ct. 553, 62 L.Ed.2d 481 (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, 112 S.Ct. 1061, 117 L.Ed.2d 261 (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 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.⁷ It follows that our review excludes from consideration the various methods of expressive speech and 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...