Clinton County Elections Commissioners Susan Castine, Democrat, and Republican Gregory Campbell. (Denton Publications, Inc.)
A county’s decision to enforce a local law and remove an elections commissioner because her job conflicted with her own race for town justice did not violate the First Amendment, the U.S. Court of Appeals for the Second Circuit held Monday.
The Second Circuit found that the free speech rights of Susan Castine to run for public office as a candidate for Beekmantown Town Justice must give way to Clinton County’s interest in running a Board of Elections free of conflict of interest.
The circuit upheld the dismissal of Castine’s complaint by Northern District Judge David Hurd (See Profile) in Castine v. Zurlo, 13-1834-cv, with Judges Dennis Jacobs (See Profile), Pierre Leval (See Profile) and Rosemary Pooler (See Profile) deciding the appeal.
Castine was elected in 2006 for a four-year term as Beekmantown Town Justice beginning on Jan. 1, 2007. She was appointed as the Democratic Party’s elections commissioner for Clinton County to fill a two-year vacancy beginning on Jan. 1, 2009.
While still on the Board of Elections, she filed for re-election as town justice on July 12, 2010 and, two days later, Clinton County Administrator Michael Zurlo called an executive session of the Clinton County legislature on the enforcement of Clinton County Local Law No.1, which prohibits candidates for elective office from also holding office on the Board of Elections.
Zurlo followed the meeting by sending a letter and then an email seeking confirmation that Castine would be temporarily suspended as election commissioner.
But when Alan Gibson, the county personnel director, asked Castine to complete a termination form and leave office, she questioned his authority and said she would only leave office with a deputy present.
The county obliged on July 19, 2010, and after Castine again refused to sign the termination form, she was escorted from the building by a deputy sheriff.
Castine filed suit the same day claiming retaliation for exercising her First Amendment-protected right to run for office. She also asked for a declaratory judgment that Local Law No. 1 was void under New York State law.
Castine won re-election on Nov. 2, 2010. Since she was no longer running for office, she returned to her post as election commissioner the following day.
After Hurd’s ruling on summary judgment, Castine went to the Second Circuit, where Leval wrote for the court Monday that the case of Pickering v. Board of Education, 391 U.S. 563 (1968) governed the dispute.
In Pickering, the U.S. Supreme Court balanced the interests of the parties before deciding that a school board could not fire a teacher who wrote a letter to the editor of a local newspaper criticizing the way the board handled bond issue proposals and allocated money, including spending too much on athletics.
Leval said the circuit had in the past outlined factors on how a state may avoid liability under the Pickering balancing test, saying a state may take action against an employee for speech on matters of public concern where it was reasonable for the employer to fear disruption, the “potential for disruption outweighs the value of the speech” and the employer was not retaliating for the speech itself, but for the disruption.
“On numerous occasions, we have rejected claims of First Amendment retaliation involving dismissals from employment on this basis,” he said, and he cited the case of Locurto v. Giuliani, 447 F.3d 159, (2d Cir. 2006), where the Second Circuit upheld the firings of New York City police officers involved in a racist parade float.
In Locurto, Leval, said, the court did so despite the fact that the fired officers “were speaking anonymously as private citizens, on their own time, on matters of public concern.”
“We reached this conclusion in recognition that a police department is impaired in the performance of its duties to the extent it is viewed by the public as staffed by racially biased officers,” he said.
Here, Leval said there was no question that Castine engaged in constitutionally protected speech or that she suffered an adverse employment action, but under the Pickering balancing test, there was no First Amendment violation.
It was reasonable to expect that her candidacy would create a conflict of interest and “impair the integrity of Clinton County elections,” he said, and “it is clear that defendants temporarily suspended Castine in order to advance the permissible objective of enforcing local law and minimizing the potential damage to the integrity of local elections.”
Finally, he said, “the defendants’ interest in avoiding disruption to the work of the election commission outweigh’s Castine’s interest in running for public office while simultaneously serving as election commissioner.”
Hurd had granted summary judgment for the county on Castine’s declaratory law action as well as her constitutional claim, but the circuit said that by the time Hurd ruled, she had been reinstated and the statute was no longer being enforced against her.
It vacated Hurd’s grant of summary judgment and remanded the issue to him to consider whether the declaratory judgment claim was moot or should be brought in state court.
John Moore of Towne, Ryan and Partners in Albany represented the county.
Thomas Marcelle of Slingerlands, now the County Attorney in Albany, represented Castine on the appeal.
Marcelle said Tuesday that Castine is running for reelection as town justice right now and still sits on the Board of Elections, setting up a return match on the issue.
He said the Clinton County law directly conflicts with state law that allows people to serve as a town justice and on the Board of Elections at the same time and he plans to either argue that point before Hurd or institute a state Article 78 proceeding.
“I guess what makes the case so startling is that a local government, without the ability or the authority to legislate on an issue can still present an interest sufficient enough to suppress First Amendment activities,” Marcelle said.