Fourth Circuit dismisses First Amendment claims against Judge Frye

In Mary Lou Smith and Greg Smith v. Hon. Andrew N. Frye, Jr., No. 06-1801 (4th Cir. May 18, 2007) (PDF), the Fourth Circuit affirmed the dismissal under Rule 12(b)(6) of a suit brought by a former magistrate court clerk who was fired by Mineral County Circuit Judge Andrew Frye after her son filed as a candidate for the position of circuit clerk. The suit claimed the discharge of clerk Mary Lou Smith, an at-will employee, violated both Plaintiffs' federally-protected First Amendment rights.

The district court held that Ms. Smith's suit failed to state a claim because she did not exercise any First Amendment rights prior to her discharge, and that the son's claims failed for lack of standing. The Fourth Circuit affirmed.

The clerk of the magistrate court serves at the will and pleasure of the chief circuit judge. After Smith's adult son filed to run for circuit clerk, an elected position, Chief Judge Frye expressed concerns over potential conflicts of interest and the proper functioning of the local judicial system, and he terminated Ms. Smith's employment. The Smiths filed suit under 42 U.S.C. § 1983 alleging that Frye fired Ms. Smith because he believed she supported her son's candidacy, and not that of the incumbent circuit clerk. The Fourth Circuit held that even if that were true, no cause of action existed under § 1983.

The Court found that Ms. Smith did not state a First Amendment claim for violating her speech rights under the so-called McVey test named for McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir. 1998). Because the first prong of the 3-prong McVey test requires that the "public employee . . . have spoken out as a citizen . . . on a matter of public concern," id., the court found Ms. Smith’s claim failed because she had not spoken or expressed herself in any way.

The tougher question was whether Ms. Smith stated no First Amendment associational rights claim. The Court found no associational claim under the Elrod-Branti line of cases. Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980). 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. These cases concern the political practice of patronage, or conditioning public employment on party membership or support. The cases generally involve either a public official punishing employees for their affiliation or nonaffiliation with a particular political party, or firings motivated by the official's desire to reward loyal supporters for their affiliation with him.

This case did not fit into either paradigm, according to the Court. "In each of the above-cited cases ... there is a clear and direct connection among the supervisor’s own political association, that of the terminated employee, and the adverse employment action. There is no such connection here. ... Judge Frye dismissed Ms. Smith from her at-will employment as magistrate court clerk ... neither in the heat of his own campaign nor during a victory housecleaning. We do not find that Ms. Smith alleges a constitutional violation here, and therefore affirm the district court’s dismissal of her claims."

The Court went on to note that even if Ms. Smith had made out a viable claim, qualified immunity would have protected Judge Frye.

For his part, Mr. Smith claimed that his First Amendment rights as a candidate for public office were chilled by Judge Frye’s allegedly retaliatory firing of Mr. Smith’s mother. Additionally, he claimed to have suffered the injuries of indignity, embarrassment, and emotional distress because he felt responsible for his mother’s discharge. His claim was dismissed for lack of standing because "Quite simply, under the circumstances of this case, an adverse employment action against Ms. Smith does not create a concrete and particularized violation of any legally protected right of Mr. Smith’s."

In her concurring opinion, Judge Motz joined the majority opinion except for its determination that Ms. Smith failed to allege a cause of action for violation of her First Amendment rights. She believed that in her complaint Ms. Smith alleged sufficient facts to state a claim, but that qualified immunity would protect Judge Frye from liability.

The majority opinion noted at several points that it was not clear from the record whether the magistrate clerk position was a policymaking position, for which dismissals for reasons of patronage are constitutionally permissible. See Branti, 445 U.S. at 518 ("[T]he question is whether . . . party affiliation is an appropriate requirement for the effective performance of the public office involved.")