Smith v. Frye

• Decision Date: 18 May 2007
• Docket Number: No. 06-1801.,06-1801.
• Parties: Mary Lou SMITH; Greg Smith, Plaintiffs-Appellants, v. Honorable Andrew N. FRYE, Jr., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

488 F.3d 263

Mary Lou SMITH; Greg Smith, Plaintiffs-Appellants, v. Honorable Andrew N. FRYE, Jr., Defendant-Appellee.

No. 06-1801.

United States Court of Appeals, Fourth Circuit.

Argued: March 12, 2007.

Decided: May 18, 2007.

ARGUED: Allan Norman Karlin, Morgantown, West Virginia, for Appellants. John M. Hedges, Byrne, Hedges & Lyons, Morgantown, West Virginia, for Appellee. ON BRIEF: Teresa J. Lyons, Byrne, Hedges & Lyons, Morgantown, West Virginia, for Appellee.

Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge NIEMEYER concurred. Judge MOTZ wrote a separate opinion concurring in part and concurring in the judgment.

OPINION

DUNCAN, Circuit Judge:

Appellants Mary Lou Smith ("Ms. Smith") and her son, Greg Smith ("Mr. Smith"), appeal the district court's dismissal of their suit against Judge Andrew N. Frye, Jr. ("Judge Frye"), Chief Circuit Judge for the Twenty-First Judicial Circuit in West Virginia. Judge Frye discharged Ms. Smith from her at-will employment as a magistrate court clerk after Mr. Smith filed as a candidate for the position of circuit clerk against the incumbent, Ms. Smith's colleague. Appellants brought this action under 42 U.S.C. § 1983, alleging a violation of their First Amendment rights.

Judge Frye moved to dismiss the complaint based upon failure to state a claim and the defense of qualified immunity. Judge Frye further contended that Mr. Smith lacked standing. The district court dismissed the complaint, concluding that Ms. Smith had failed to state a claim because she did not exercise any First Amendment rights prior to her discharge and that Mr. Smith's claims failed for want of standing.

We hold that Ms. Smith has failed to state a claim that her firing violated her First Amendment speech or associational rights and also hold that Mr. Smith lacks standing. We therefore affirm.

I.

Ms. Smith was hired as the Clerk of the Magistrate Court of Mineral County, West Virginia in November 2002. The Clerk of the Magistrate Court serves at the will and pleasure of the Chief Judge of the Twenty-First Judicial Circuit of West Virginia. Two circuit judges for the Twenty-First Judicial Circuit, Judge Philip B. Jordan, Jr. and Judge Andrew N. Frye, Jr., take turns serving as Chief Judge based on a regular two-year rotation. When Ms. Smith was first hired, Judge Jordan was serving as Chief Judge. On January 1, 2003, Judge Frye assumed the role. From the time of her hiring, Ms. Smith apparently performed her job adequately, receiving no complaints about her performance.

On January 30, 2004, Ms. Smith's adult son, Mr. Smith, filed to run for the office of Mineral County Circuit Clerk. At that time, the office was held by an incumbent Republican whom Mr. Smith would challenge in the Republican primary. Several days later, Judge Frye told Judge Jordan that he intended to fire Ms. Smith because of her son's candidacy. Judge Frye expressed concerns over potential conflicts of interest and the proper functioning of the local judicial system created by the combination of Ms. Smith's employment and her son's candidacy. Judge Frye terminated Ms. Smith's employment on February 5, 2004.

The personnel policies and procedures governing the West Virginia judicial system, as promulgated by the West Virginia Supreme Court of Appeals, grant an employee dismissed without cause a post-dismissal hearing to determine if the dismissal was actually due to reasons impermissible under federal or state law. See Sections 6.2(E),(G) of the West Virginia Judicial Personnel System Manual (effective Jan. 1990, and as subsequently amended), at J.A. 32-33. In such cases, the Administrative Director of the Supreme Court of Appeals or his designee appoints a hearing examiner, who in turn takes evidence, makes findings, and submits such findings and recommendations back to the Administrative Director. The Administrative Director must then affirm or reverse the hearing examiner's report. If the Administrative Director finds against the employee, the employee may request an administrative review by the Supreme Court of Appeals, which may grant or deny the request, or uphold or reject the dismissal. Any decision by the Supreme Court of Appeals is final.

In this case, Ms. Smith exhausted the administrative review available to her. The hearing examiner found that Ms. Smith "would not have been discharged had her son not become a candidate for circuit clerk, but that her discharge did not violate state or federal law." Smith v. Frye, No. 2:06-CV-14, 2006 U.S. Dist. LEXIS 39909, at *4 (N.D.W. Va. June 14, 2006). The designee of the Administrative Director affirmed the examiner's report, and the Supreme Court of Appeals denied Ms. Smith administrative review.

After exhausting Ms. Smith's administrative review, both she and Mr. Smith filed suit in federal court alleging that Judge Frye violated their First Amendment rights. The Smiths allege that Judge Frye fired Ms. Smith because he believed that Ms. Smith supported her son's candidacy, and not that of the incumbent circuit clerk. Although the Smiths' allegations have been both vague and evolving, they do not allege that Ms. Smith demonstrated her support through expressive activity or through association. Judge Frye brought a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss Ms. Smith's claim, and a motion to dismiss Mr. Smith's claim for lack of standing. The district court granted both motions, and we now review the Smiths' appeals from the district court's decisions on each in turn.

II.

We first address Ms. Smith's claims that the district court erred in dismissing her claims under Rule 12(b)(6). We review de novo a district court's dismissal under Rule 12(b)(6), Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993), and accept all allegations in Ms. Smith's complaint as true, Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992). Therefore, we assume that Judge Frye fired Ms. Smith because he believed she supported Mr. Smith's candidacy in the race for circuit clerk.

A.

Ms. Smith argues that the district court erred in relying upon cases involving allegedly retaliatory actions taken against public employees based on the content of their speech rather than on cases addressing public employees' associational rights. Indeed, the district court concluded that because Ms. Smith does not allege she said or did anything in support of her son's candidacy (i.e., she does not allege she exercised First Amendment rights) that her claim failed as a matter of law. In reaching this result, the district court applied the so-called McVey test, our circuit's three-prong test to determine if a retaliatory employment action violates an employee's First Amendment rights. See Ridpath v. Bd. of Governors of Marshall Univ., 447 F.3d 292, 316 (4th Cir.2006); McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir.1998).

First, the public employee must have spoken as a citizen, not as an employee, on a matter of public concern. Second, the employee's interest in the expression at issue must have outweighed the employer's interest in providing effective and efficient services to the public. Third, there must have been a sufficient causal nexus between the protected speech and the retaliatory employment action.

Ridpath, 447 F.3d at 316 (internal citations and quotations omitted). Because the first prong of the McVey test requires that the "public employee . . . have spoken out as a citizen . . . on a matter of public concern," id., the district court found Ms. Smith's claim failed because she had not spoken or expressed herself in any way. We find no error in the district court's analysis on this issue,¹ but we agree with Ms. Smith that we must also review the claim that her firing violated her First Amendment associational rights. We consider that claim below.

B.

Ms. Smith argues that her termination violated the First Amendment even in the absence of the exercise of First Amendment speech rights, relying upon the Supreme Court's decisions in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), and their progeny. She asserts that Judge Frye's dismissing her from her at-will post as magistrate clerk because he believed she supported her son's campaign offends Elrod's prohibition on politically-motivated firings.²

The Elrod-Branti line of cases establishes that a public employee may not, consistent with the First and Fourteenth Amendments, be terminated for her political affiliation or lack thereof. Elrod, 427 U.S. at 358-59, 96 S.Ct. 2673 (plurality opinion); Knight v. Vernon, 214 F.3d 544, 548 (4th Cir.2000). "[T]he First Amendment forbids government officials to discharge or threaten to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved." Rutan v. Republican Party of Ill., 497 U.S. 62, 64-65, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). These cases concern the political practice of patronage, or conditioning public employment on party membership or support.

Patronage violates the First Amendment because of the "restraint it places on freedoms of belief and association." Elrod, 427 U.S. at 355, 96 S.Ct. 2673 (plurality opinion). Because patronage forces employees to choose either to affiliate with a particular party or risk losing their jobs, it compels speech and belief. Id. at 356-57, 96 S.Ct. 2673. However, patronage dismissals of individuals in policymaking positions are constitutional, "to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate." Id. at 367, 96 S.Ct. 2673. Ms. Smith argues, in effect, that Judge Frye engaged in improper patronage by firing...