First Amendment protects nonpartisan government employees who campaign against their eventual boss – Fourth Circuit

Lawson v. Union Cty. Clerk of Court. The Fourth Circuit has confirmed that government employees with apolitical positions can campaign without fear of retaliation.

The Clerk of Court of Union County, South Carolina, is an elected official. The Clerk, William Gault fired his deputy clerk, Melanie Lawson. Lawson had been a deputy clerk for about 20 years and ran against Gault in the 2012 election. Shortly after he won the election, Gault fired Lawson. Lawson sued.

Lawson alleged that she was fired because of her exercise of her right to seek public office in violation of the First Amendment. Gault moved for summary judgment, arguing that he could fire his deputies for “perceived political disloyalty.” The district court granted Gault summary judgment, holding that the confidential or policymaking position was subject to termination for campaigning against her boss. The Fourth Circuit disagreed and vacated the opinion.

The district court opinion relied on two doctrines. The Elrod-Branti exception holds that policymaking employees may be terminated for their political beliefs if “party affiliation is an appropriate requirement for the effective performance of the public office involved.” The Pickering doctrine provides that the First Amendment does not protect public employees when their speech interests are outweighed by the government’s interest in providing efficient and effective services to the public.

The Fourth Circuit wrote:

Deputy clerks are generally responsible for administrative and ministerial tasks, such as keeping records and managing court accounts. We see no evidence the deputy clerks perform tasks that relate to “partisan political interests or concerns,” and thus we cannot conclude that party affiliation is relevant to an employee’s qualification to serve as a deputy clerk.

Gault has not argued that a deputy clerk would be better suited to carry out [her] specific tasks if she espoused a particular political philosophy. Nor has he pointed to any specific policies that Lawson was responsible for setting.

For the foregoing reasons, we cannot conclude, as a matter of law, that “party affiliation is an appropriate requirement for the effective performance” of Lawson’s former position as a deputy clerk. . . Accordingly, we reverse the district court’s decision to grant summary judgment to Gault based on the Elrod-Branti exception.

Simply put, the history of this case does not present us with an adequate Pickering record to review. Gault moved for summary judgment based on Elrod-Branti, the district court granted the motion based on Elrod-Branti, Gault urged us to affirm the order based solely on Elrod-Branti, and we now hold that Gault failed to establish the Elrod-Branti defense. This resolves the appeal, and we need not go any further.

Citation Omitted.

The opinion also concludes that Gault is not entitled to the immunity defense he asserted, but I am not addressing that in this post.

The dissent would have also granted summary judgment to Lawson, which, according to the majority was “never moved for” or “otherwise sought.”

As we move into a contentious election season, this opinion is a good one for government employees and election lawyers to review. It gives a good overview of the tests that apply to a government employee’s exercise of their First Amendment rights in an election (even if, as the dissent claims, it “wades into the deep end of a large pool of obiter dicta”).