1 13

- 1834 Castine v. Zurlo UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
August Term, 2013 (Argued: March 11, 2014 Decided: June 23, 2014 )

Docket No. 13

- 1834

- cv

----------------------------------------------------------- X 1 SUSAN R. CASTINE, 2 Plaintiff

- Appellant , 3

v. 4 MICHAEL E. ZURLO, in his individual and official capacity, CLINTON 5 COUNTY, 6 Defendant

- Appellee s

. 1 7

----------------------------------------------------------- X 8

9
Before: JACOBS, LEVAL, and POOLER , Circuit Judges : 10 Plaintiff Susan R. Castine appeals from a judgment of the United States 11 District Court for the Northern District of New York ( Hurd, J. ) dismiss ing her 12 suit against Defendants Clinton County and the County Administrator

. Castine 13 alleged that Defendants violated her First Amendment rights by removing her 14 from her office as Election Commissioner while she ran for an elective town 15 office pursuant to an ordinance that disqualified candidates for elective office 16

1 The Clerk of Court is directed to amend the official caption to conform to the caption above.2

from employment in the Board of Elections. She asserted a state law claim as 1 well. The district court concluded that Defendants were entitled to summary 2 judgment. The Court of Appeals (Leval , J. ) holds that the district court properly 3 granted summary judgment in favor of Defendants on Castine’s First 4 Amendment retaliation claim

. The court vacates and remands the claim brought 5 under New York state law. The judgment of the district court is t herefore 6 AFFIRMED in part and VACATED in part and REMANDED. 7
THOMAS MARCELLE , Law Office of 8 Thomas Marcelle , Slingerlands , NY , for 9 Plaintiff

- Appellant

. 10 JOHN F. MOORE , Towne, Ryan & 11 Partners, P.C. , Albany , NY , for Defendant

12 Appellees

. 13
LEVAL , Circuit Judge : 14 Plaintiff Susan R. Castine appeals from a judgment of the United States 15
District Court for the Northern District of New York ( Hurd, J. ) dismissing her 16

suit against Defendants Clinton County Administrator Michael E. Zurlo and 17
Clinton County. Castine brought this suit within the federal question 18
jurisdiction of the federal courts , 28 U.S.C. § 1331 , protesting her temporary 19
removal from the office of Clinton County Election Commissioner during her 20
candidacy for Beekmantown Town Justice

. Her complaint alleges that her 21

removal from office under Clinton County Local Law No. 1 of the Year 2000 22
(‚Local Law No. 1‛) was an unconstitutional retaliation for the exercise of her 233

First Amendment rights in running for elective office and se eks damages , 1
declaratory, and injunctive relief under 42 U.S.C. § 1983. The district court 2
granted Defendants’ motion for summary judgment on that claim. The court 3

concluded that Castine ’s evidence failed to show a genuine issue of material fact 4
supporti ng her claim of unconstitutional retaliation. We agree and therefore 5
affirm the judgment insofar as it dismissed her federal claim. 6
Castine’s complaint included a second claim, brought under supplemental 7
jurisdiction, see 28 U.S.C. § 1 3 67, seeking a declaratory judgment that Clinton 8
County Local Law No. 1 is void under New York s tate law. The District Court 9
granted summary judgment in favor of the defendants on that claim as well. We 10
vacate that aspect of the judgment and remand for fu rther consideration. 11

FACTUAL BACKGROUND 12
In 2006, Castine was elected to the position of Beek mantown Town Justice 13

for a four

- year term beginning January 1, 2007. In 2008, while serving as Town 14
Justice, she was appointed as the Democratic Party’s Election C ommissioner for 15
Clinton County to fill a two

- year vacancy beginning January 1, 2009. 16
As Election Commissioner, Castine served at the head of the Board of 17
Elections, which was charged with , among other things, determining the validity 184

of petitions, determ ining which voters are entitled to vote by absentee ballot, 1
counting, tallying, and canvassing votes for primary and general elections, and 2
approving the form of the ballots for primary and general elections. Election 3
Commissioners also share responsibili ty for preparing the form of the ballot, 4
including deciding the placement of candidates on the ballot. These 5
responsibilities extend to Beekmantown local elections, including its election for 6
Town Justice. 7
To preserve the integrity of local elections, Local Law No. 1 prohibits 8
candidates for elective public office from simultaneously holding employment or 9

office in the Board of Elections

. That law provides, in relevant part, that ‚*a+ny 10
person who shall become a candidate for elective public office sh all be 11
disqualified during the period of his or her candidacy from appointment or 12
continued employment from the Board of Elections.‛ Local Law No. 1. 13
On July 12, 2010, while serving as Election Commission er , Castine filed a 14
petition with the Clinton Cou nty Board of Elections to become a candidate for 15

reelection to the position of Beekmantown Town Justice. In response, at a July 14 16
meeting of the Clinton County Legislature , Zurlo called an executive session 17
seeking direction on how to handle Castine’s si multaneous employment as 185

Election Commission er and candidacy for Beekmantown Town Justice. In 1
particular, Zurlo sought a determination whether to enforce Local Law No. 1

. 2

After receiv ing advice from the County Attorney , t he Legislature unanimously 3
agreed that Local Law No. 1 should be enforced against Castine. 2 4
On July 15, 2010, Zurlo wrote Castine a letter informing her of the Clinton 5
County Legislature’s determination to enforce Local Law No. 1 against her . The 6

letter also informed Castine that, unless she provided evidence of the declination 7
of her candidacy for Town Justice prior to July 16, 2010, she would be expected to 8
terminate her employment as Election Commissioner. The next day, Zurlo sent 9

Castine an e

- mail saying: ‚I just wanted to confirm that you will be sending me a 10
copy of proof of declination today.‛ Castine wrote back almost immediate ly: ‚I 11
will be responding today, ‛ but sent no further communication

. 12
Castine had multiple conversations with Clinton County Personne l 13
Director Alan Gibson. Gibson asked Castine to complete a termination form and 14
to vacate her office. Castine responded that she believed Gibson did not have the 15

2 In her complaint and in certain filings below, Castine also raised an argument about the potentially improper motivation of the Clinton County Legislature in deciding to enforce L ocal L aw No. 1 against her, suggesting that the action was taken in order to advance the candidacy of a legislator’s nephew who was also running for Beekmantown Town Justice. Castine has abandoned this argument on appeal.6

authority to remove her from office and that she would leave her office only with 1
a deputy p resent

. 2
On July 19, 2010, Gibson went to Castine’s office with a deputy sheriff who 3
waited outside her door. Gibson asked Castine to sign a termination checklist, 4

which she refused to do

. H e and the deputy then escorted Castine from the 5
building. That sa me da y, Castine filed this lawsuit. 6
On November 2, 2010, Castine won the election for Beekmantown Town 7
Justice, and the next day she returned to her position as Election Commissioner. 8

PROCEDURAL HISTORY 9
Castine, the Clinton County Democratic Party, and Martin Mannix (as 10
Chairman of the Clinton County Democratic Party) brought this action on July 11
19, 2010, against County Administrator Zurlo (in his individual and official 12
capacities) and the County. In Oc tober 2011, Mannix and the Clinton County 13
Democratic Party then voluntarily dismissed all of their claims. In late 2011 and 14
early 2012, Castine and Defendants cross moved for summary judgment. On 15
April 12, 2013, the district court granted summary judgmen t in favor of the 16

Defendants on all of Castine’s claims

. Castine appealed. S he contests only the 17

dismissal of the two claims described above. 187 DISCUSSION 1

Castine’s federal claim asserts that the Defendants violated her 2
constitutional rights by removing her from office as Election Commissioner 3

under Local Law No. 1 in retaliation for exercising her First Amendment

– 4
protected right to run for elective office. She contends on appeal that the district 5

court erred in granting summary judgment on that claim. 3 6
For the reasons that follow, we agree with the district court that Castine 7
has not cited to evidence that would permit a reasonable factfinder to find in her 8

favor

. We therefore affirm the district court’s grant of summar y judgment on 9

that claim. 10
The principal authority governing cases of this nature is Pickering v. B oar d 11
of Educ ation , 391 U.S. 563 (1968) , i n which the local newspaper published a letter 12

to the editor from a teacher, Marvin Pickering , which criticiz ed the local School 13
Board’s handling of certain bond issue proposals and its allocation of resources. 14
Pickering’s letter took the position, among others, that too much money was 15

3 ‚We review an award of summary judgment de novo , construing the evidence in the light most favorable to the non

- moving party.‛ Lynch v. City of New York , 737 F.3d 150, 156 (2d Cir. 2013). Summary judgment is proper ‚only where there is no genuine issue of material fact, and the moving party is entitl ed to judgment as a matter of law.‛ Id.8

being spent on athletics. The Board fired Pickering for writing the letter, and 1
Pickering brought suit, alleging that the firing in retaliation for his exercise of a 2

First Amendment

– protected right was a tort in violation of the Constitution. Id. 3

at 564, 567. 4
The Supreme Court ruled in the teacher’s favor, but only after engaging in 5
a balancing of interests. The Court made clear tha t, while public school teachers 6
do not relinquish their First Amendment right to speak as citizens on matters of 7
public interest regarding the ir schools, that right does not necessarily protect 8

them from adverse employment action by reason of their speech. This is because 9

‚ the State has interests as an employer in regulating the speech of its employees 10
that differ significantly from those it possesses in connection with regulation of 11

the speech of the cit izenry in general .‛ Id

. at 568

. The Court ’s reasoning thus 12
relied on the proposition that a public employer does not necessarily violate an 13
employee’s First Amendment rights by taking an adverse employment action 14
against that employee to discipline her for speech on matters of public concern, 15
even when that speech is protected (in other ways) under the First Amendment. 16
In such circumstances, rather than consider the speech under the lens of strict 17
scrutiny, courts must ‚ arrive at a balance between the i nterests of the teacher, as 189

a citizen, in commenting up on matters of public concern and the interest of the 1

State , as an employer, in promoting the efficiency of the public services it 2
performs through its employees .‛ Id. 3
Applying this test to the facts of Pickering’s case, the court found that the 4
balance favored Pickering . His letter to the editor in no way impaired 5
Pickering’s performance of his job as a teacher or the ability of the schools to 6

function properly: 7
[ His ] statements [were] in no way dir ected toward s any 8 person with whom [he] would normally be in contact in the 9 course of his daily work as a teacher. Thus no question of 10 maintaining either discipline by immediate superiors or 11 harmony among coworkers [was] presented

. . . . [ Pickering’s ] 12 employment relationships with [those he criticized were] not 13 the kind of close working relationships for which it can 14 persuasively be claimed th at personal loyalty and confidence 15 are necessary to their proper functioning. 16
17 Id. at 569

- 70

. Pickering’s ass ertions that ‚ too much money [ was ] being spent on 18

athletics . . . [could not] reasonably be regarded as per se detrimental to the 19

district’s schools .‛ Id

. at 571

. His criticisms of and disagreements with the Board 20

did not ‚ in any way either impede[ ] [the ] proper performance of his daily duties 21
in the classroom or . . . interfere[] with the regular operation of the schools 22
generally .‛ Id. at 572

- 73 (footnote omitted)

. 2310

While for those reasons the balance of factors distinctly favored the 1
employee in Pickeri ng’s case, we have formulated considerations that bear upon 2

how s tate defendants may ‚ avoid liability under . . . the Pickering balancing test ,‛ 3

Anemone v. Metro. Transp . Auth. , 629 F.3d 97, 115 (2d Cir. 20 11 )

. 4 ‚Under this 4
defense, ‘*a+ government employer may take an adverse employment action 5
against a public employee for speech on matters of public concern if: (1) the 6
employer’s prediction of the disruption that such speech will cause is reasonable; 7
(2) the pot ential for disruption outweighs the value of the speech; and (3) the 8
employer took the adverse employment action not in retaliation for the 9
employee’s speech, but because of the potential for disruption.’‛ Anemone , 629 10

F.3d at 115 (quoting Johnson v. Gani m , 342 F.3d 105, 114 (2d Cir. 2003)); see also 11
Mandell v. County of Suffolk , 316 F.3d 368, 382

- 83 (2d Cir. 2003). 12
On numerous occasions, we have rejected claims of First Amendment 13
retaliation involving dismissals from employment on this basis. For examp le, we 14
have upheld disciplinary terminations of police officers because they 15
disseminated racially biased public speech, notwithstanding that they were 16

4 In Garcetti v. Ceballos , 547 U.S. 410 (2006), the Supreme Court expressed the view that, if a public ‚employee *speaks+ as a citizen on a matter of public concern,‛ then the ‚question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.‛ Id. at 418.11

speaking anonymously as private citizens, on their own time, and on matters of 1
public concern. See Locu rto v. Giuliani , 447 F.3d 159, 178 (2d Cir. 2006); Pappas v. 2

Giuliani , 290 F.3d 143, 146

- 47 (2d Cir. 2002). We reached this conclusion in 3
recognition that a police department is impaired in the performance of its duties 4

to the extent it is viewed by the public as staffed by racially biased officers. See 5

Locurto , 447 F.3d at 178; Pappas , 290 F.3d at 146

- 47. In other contexts, too, we 6
have recognized that public employers must, to a degree, be able to restrict the 7
speech of their emplo yees, or they will be unable to perform important work 8
necessary to the functioning of the State. See, e.g. , Piscottano v. Murphy , 511 F.3d 9

247, 276

- 78 (2d Cir. 2007); Lewis v. Cowen , 165 F.3d 154, 164

- 65 (2d Cir. 1999)

. 10
Here, Castine argues that Defendan ts impermissibly retaliated against her 11
by temporarily removing her from her position as Election Commissioner during 12
her candidacy for Beekmantown Town Justice. We assume, for purposes of this 13
opinion, that she has made out a prima facie case of First Am endment retaliation. 14
Her act of running for elective public office is a form of speech that is protected 15
by the First Amendment. 5 And there is no doubt that the Defendants’ act of 16

5 In the context of First Amendment retaliation claims by public employees, we have not always used the term ‚protected speech‛ to refer to the same thing. In some contexts, we have referred to ‚protected speech‛ to mean any speech potentially protected by the First Amendment. See, e.g. , Name.Space, Inc. v.12

temporarily removing her from office at the Board of Election s was an adverse 1
employment action taken by reason of her running for elective office. 2
Nevertheless, the uncontroverted record evidence compels the conclusion 3
that, under the Pickering balancing test, Defendants’ conduct did not violate the 4
First Amendment. First, it was reasonable for Defendants to expect that 5
Castine’s candidacy for elective office would create a conflict of interest with her 6
position as Election Commissioner and tha t it would impair the integrity of 7
Clinton County elections to permit Castine to occupy those two roles 8
simultaneously. Second, it is clear that Defendants temporarily suspended 9
Network Solutions, Inc. , 202 F.3d 573, 585 (2d Cir. 2000). This meaning of ‚protected speech‛ is expansive, covering almost anything that can be described as speech, with only the narrowest exceptions for shouting fire in a crowded theater, obscenity, speech likely to incite imminent violence, and the like. See, e.g. , Ashcroft v. Free Speech Coalition , 535 U.S. 234, 245

- 46 (2002); United States v. Irving , 452 F.3d 110, 120 (2d Cir. 2006). But we have also used the term ‚protected speech‛ to mean speech that a public employee is entitled to make without incurring any adverse employment actions by his or her government employer (subject to the Pickering balancing defense)

. See, e.g. , Nagle v. Marron , 66 3 F.3d 100, 105

- 06 (2d Cir. 2011). This second meaning of ‚protected speech‛ is significantly narrower than the first, as public employees cannot state a claim for First Amendment retaliation unless (among other requirements) they speak as citizens on mat ters of public importance. See Garcetti , 547 U.S. at 417. The speech at issue here, running for public office, is protected in the first sense. Because we conclude that the Defendant s in any event prevail under Pickering by showing that the Castine’s run for public office while sitting in the Board of Elections would disrupt the efficacy of the Board , we need not now decide whether Castine’s speech satisfies all the requirements to qualify as protected in the second, narr ower sense.13

Castine in order to advance the permissible objective of enforcing local law and 1
minimizing the potential damage to the integrity of local elections. Third, the 2
Defendants’ interest in avoiding disruption to the work of the Election 3
Commission outweighs Castine’s interest in running for public elective office 4
while simultaneously serving as Election Commissioner. 5
We have no hesitation in concluding that the balance of interest s here 6

favors Defendants. Although presented in a slightly different manner, the same 7

factors that dictated the results of Locurto and Pappas similarly require the 8
rejection of Castine’s claim. In the office of Election Commissioner, Castine 9
played a governing role in the body charged with responsibility to supervise the 10

conduct of elections

. As a candidate for Town Justice, Castine would par ticipate 11
in an election supervised by the Board of Elections. The Clinton County 12
legislature reasonably concluded that the Board’s ability to supervise elections 13
fairly, as well as the public perception of its fairness in performing that function, 14

would b e impaired if the persons involved in exercising the supervisory 15
responsibility were themselves candidates in the elections they were supervising. 16

This would present an unacceptable conflict of interest. The legislature therefore 17

enacted the law disquali fying candidates for ele ctive office from simultaneous 1814

employment in the Board of Elections. At least the appearance of fairness, and in 1
all likelihood the fact as well, would have been substantially impaired if a 2
candidate for election were to participat e in the functions of the Board of 3

Election s supervising that election. The act of the Defendants in removing 4
Castine from her position as Commissioner for the duration of her campaign for 5
elective office reasonably gave effect to this altogether reasonab le provision of 6

law. Although without doubt the enforcement of the law caused some 7

curtailment of Castine’s exercise of her First Amendment rights, the Pickering test 8

authorizes such a result

. Granting to Castine the right to retain her position as 9

Election Commissioner while she ran for office in an election supervised by the 10

Board of Election s would have impaired the Board ’s ability to perform its 11
functions appropriately. 12
We find further suppo rt for our analysis in the Supreme Court’s clear 13
pronouncements that t he Constitution affords States substantial leeway to ensure 14

the fairness of their own elections in matters unrelated to campaign finance 15
regulations

. See, e.g. , Burdick v. Takushi , 504 U.S. 428, 433 (1992) (‚Common sense, 16
as well as constitutional law, compels the conclusion that government must play 17
an active role in structuring elections.‛) . ‚*W+hen a state election law provision 1815

imposes only ‘reasonable, nondiscriminatory restrictions ’ upon the First and 1
Fourteenth Amendment rights of *individuals+, ‘the State’s important regulatory 2
interests are generally sufficient to justify’ the restrictions.‛ Id. at 434 (quoting 3

Anderson v. Celebrezze , 460 U.S. 780, 788 (1983)). Applying this st andard (or its 4
antecedents), the Supreme Court has upheld many state restrictions on elections, 5

includ ing Minnesota’s prohibition on multi

- party candidacies for elected office, 6

see Timmons v. Twin Cities Area New Party , 520 U.S. 351, 365

- 66, 370 (1997), 7

Hawaii’s ban on write

- in ballots, Burdick , 504 U.S. at 438

- 39, and California’s rule 8
barring persons with certain political party affiliations from running as 9
independent candidates, Storer v. Brown , 415 U.S. 724, 733

- 34 (1974). These 10

restriction s constrained the political expression of citizens and candidates for 11
office in important ways, but, in each case, the Court held that the State’s 12
constitutional interest in regulating elections took precedence over the 13
individual’s right to free speech. Compared to such substantial restrictions, 14
Clinton County’s carefully drawn effort to prevent direct conflicts of interest on 15
its Board of Elections imposes a minimal burden on individuals in service of an 16
enormously important state aim. 6 17

6 Castine also argues that, because Local Law No. 1 is purportedly invalid under New York s tate law, Clinton County cannot, consistent with the First16

Defendants have m et their burden under the Pickering balancing test to 1
show that, assuming Castine established a prima facie case of retaliation in 2
violation of the First Amendment, her removal from office was nonetheless 3
permissible. Consequently, Defendants were entitle d to take adverse 4
employment actions against Castine to preserve the integrity of the Clinton 5
County Board of Elections and to enforce Local Law No. 1. We therefore affirm 6
the judgment of the district court as to this claim. 7 7
As to the second claim on appe al

— seeking a declaratory ruling that Local 8

Law No. 1 was invalid as a matter of law

— the statute was not being enforced 9
against Castine when the district court rendered judgment (about two

- and

- a

- half 10
years after her reinstatement to the Board of Electio ns). This timing raises a 11
substantial question whether that claim was (and/or is) moot. We therefore 12
vacate the judgment and remand to the district court to consider the question of 13

mootness in the first instance. Alternatively , on remand, the district court should 14
consider whether, simply as a matter of discretion, it would be preferable to 15 Amendment, enforce it. We disagree that the validity of a local ordinance under the U.S. Cons titution depends, in the manner suggested by Castine, on its validity under state law. The First and Fourteenth Amendments of the U.S. Constitution do not, as a general matter, speak to the obligations of local governments to follow state laws.

7 The Supr eme Court’s recent opinion in Lane v. Franks , 573 U.S. ___ (2014), includes nothing that is in any way inconsistent with this analysis.17

decline to exercise supplemental jurisdiction over this novel, complex matter 1
involving the interplay between state and local law, see 28 U .S.C. § 1367 , and 2
dismiss the claim without prejudice, allowing Castine to bring the claim in the 3

courts of New York. Such a ruling would obviate the need to consider the 4
question of mootness. 5

CONCLUSION 6
For the foregoing reasons, the judgment of the dist rict court is AFFIRMED 7
in part and VACATED in part and REMANDED. 8