Cook v. Popplewell

Opinion of the Court by

Justice VENTERS.

Shortly after announcing her intention to, seek election to the office of Russell County Clerk, Appellant, Stacie Cook, was discharged from her position as a deputy clerk by the incumbent Russell County Clerk, Appellee, Lisha Popplewell, who also intended to seek election to the Clerk position. Following Cook’s defeat in the primary election, she brought this 42 U.S.C. § 1983 action in the Russell Circuit Court, against Popplewell and Russell County alleging that she had been discharged in violation of her rights under the First and Fourteenth Amendments to the United States Constitution. The circuit court dismissed Cook’s complaint by summary judgment, ruling that Cook’s interest in being a candidate enjoyed no constitutional protection. The Court of Appeals upheld that ruling and we granted Cook’s motion for discretionary review to consider the important constitutional question thus presented.

Upon our last consideration of whether there is a constitutional right to candidacy, in Com. ex rel. Stumbo v. Crutchfield, 157 S.W.3d 621 (Ky.2005), we concluded that there was not. Discerning no reason to deviate from our settled law on this point, we affirm the circuit court’s awarding of summary judgment in favor of Popplewell and Russell County.

I. FACTUAL AND PROCEDURAL BACKGROUND

Construing the record in favor of the party opposing the summary judgment, as we must, Spencer v. Estate of Spencer, 313 S.W.3d 534 (Ky.2010) (citing Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991)), it appears that Cook began working for the Russell County Clerk’s office in about February 2004, when she was hired as a deputy clerk by then-County Clerk, Bridget Popplewell, the Appellee’s sister. At that time, Lisha Popplewell was serving as a deputy clerk. Several months later, Bridget resigned from her office, and Lisha Popplewell was appointed to serve as interim County Clerk until the next election in 2006. It was apparently known that Lisha Popple-well intended to retain the office by running in the 2006 election, and at some point in 2005 Cook decided to run for the office as well. Although she had not formally announced her candidacy, Cook states that by August 2005 she had revealed to her co-workers in the County Clerk’s office of her decision to run and she had begun to campaign. Those campaign activities included discussing her candidacy and seeking support from people who came to the County Clerk’s office to conduct business. However, as further discussed below, Cook does not associate her discharge with any of these activities. Rather, she alleges that she was discharged solely as a result of her status as a candidate seeking to unseat Popple-well — and not for any expressive campaign activities or political affiliations.

Soon after Cook disclosed her intentions to run, on August 16, 2005, Popplewell summarily discharged her. Popplewell maintains that she was not aware of Cook’s intention to run against her and that the discharge was for work-related reasons. Cook counters by noting that she had no record of deficient job performance and that the timing of her discharge strongly suggests that the discharge was related to the disclosure of her plan to run. The resolution of that factual point is not germane to this appeal because, as noted above, upon review of a summary judgment dismissing a claim, we accept the facts as viewed from the claimant’s (Cook’s) perspective.

Cook then filed the 42 U.S.C. § 1983 action in the Russell Circuit Court. Pop-plewell, in her official capacity as Russell County Clerk, and Russell County moved for summary judgment on the merits citing these grounds: first, that the discharge of a single employee was not the sort of policy decision that would support official capacity or county liability under 42 U.S.C. § 1983; and second, that under Kentucky law counties and county officials sued in their official capacities enjoy sovereign and official immunity, respectively. In granting Popplewell’s motion for summary judgment, the trial court relied on Carver v. Dennis, 104 F.3d 847 (6th Cir.1997), to rule that Cook’s discharge did not implicate her constitutional rights.¹ The court also agreed with Popplewell that nothing in the record “indicat[ed] that the County committed any wrong,” and further agreed, citing Yanero v. Davis, 65 S.W.3d 510 (Ky.2001), that both defendants are immune from suit under Kentucky law.

Cook appealed to the Court of Appeals. Her argument before that Court was that the trial court’s reliance on Carver was misplaced, that the trial court erred by deeming itself bound by the Sixth Circuit Court of Appeals’ decision and also that the trial court erred by following the reasoning in Carver, which she argues is misreading of the constitutional issue presented. Although the Court of Appeals recognized that Carver was not binding authority, it nevertheless found Carver to be persuasive and in accord with decisions from other federal circuits. On that basis, it affirmed the summary judgment. Having resolved the case on the merits, the Court of Appeals declined to address the trial court’s immunity ruling. Neither party asked the Court of Appeals to review the trial court’s third reason for granting summary judgment: its conclusion that Cook failed to allege a wrong attributable to Russell County. That issue, therefore, is before us only to the extent that it provides alternative support for the trial court’s judgment.²

II. THE DEFENDANTS ARE NOT IMMUNE TO COOK’S LAWSUIT

As a preliminary matter, we consider the Appellees’ claim that they are immune from Cook’s lawsuit under state immunity law.

As noted, Cook brought her complaint pursuant to 42 U.S.C. § 1983, which creates a remedy for violations of federal rights committed by persons acting under color of state law. In pertinent part, the statute provides that:

[ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other persons within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The United States Supreme Court has explained that while the states themselves and the arms of the state (which have traditionally enjoyed Eleventh Amendment immunity) are not subject to suit under § 1983, subdivisions of the state — such as counties, school districts, and municipalities — are “persons” for the purposes of the statute and may not be shielded from liability by state-created immunities. Howlett v. Rose, 496 U.S. 356, 375-81, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990); Martinez v. California, 444 U.S. 277, 284, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980) (“Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 ... cannot be immunized by state law.”) To the extent, then, that the trial court believed the defendants to be immune from Cook’s § 1983 claim under Kentucky immunity law, it was mistaken.³

III. COOK’S § 1983 CLAIM

To be entitled to relief under § 1983, Cook must establish: (1) that she has been deprived of a right secured by the Constitution or laws of the United States; and (2) that the defendants, here Russell County and Popplewell in her official capacity as Russell County Clerk, are responsible for the violation. Collins v. City of Harker Heights, Texas, 503 U.S. 115, 120, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). To satisfy the first element of her § 1983 claim, Cook alleged constitutional violations under the First Amendment and the Due Process Clause of the Fourteenth Amendment.

As noted in Section VI., infra, Cook’s Fourteenth Amendment Due Process argument is not adequately preserved for our review, leaving only her First Amendment claim for our consideration.⁴ Thus, with respect to the first requirement for § 1983 relief, as far as we are concerned, Cook alleges only that she was discharged in retaliation for being a candidate in opposition to her boss, and that her firing deprived her of her right to run for political office as guaranteed under the First Amendment.⁵

IV. THERE IS NO FIRST AMENDMENT RIGHT TO CANDIDACY

As noted, Cook argues that she is entitled to § 1983 relief because she was discharged for the exclusive reason that she undertook a rival campaign to unseat Popplewell as Russell County Clerk, a right she contends is secured by the First Amendment of the United States Constitution.⁶ Therefore, pursuant to the concessions made and arguments presented by Cook, the question we address is limited to whether candidacy for political office, standing alone, receives protection under the First Amendment.⁷ It follows that our review excludes from consideration the various methods of expressive speech and conduct, and of assembly and association, which occur during the ordinary course of a political campaign. Nor does this case implicate Cook’s association with particular political parties, groups, or points of view, or her political opinions or beliefs. Our only concern, therefore, is whether candidacy, standing alone, is a First Amendment right.⁸

To prevail on a retaliation claim stemming from the exercise of First Amendment rights:

an employee must prove that the conduct at issue was constitutionally protected, and that it was a substantial or motivating factor in the termination. If the employee discharges that burden, the government can escape liability by showing that it would have taken the same action even in the absence of the protected conduct.... And even termination because of protected speech may be justified when legitimate countervailing government interests are sufficiently strong.

Board of County Comm’rs v. Umbehr, 518 U.S. 668, 675, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996).

As noted, in Crutchfield, 157 S.W.3d 621, we unambiguously held that, in this Court’s view, candidacy for political office, standing alone, is not constitutionally protected. As discussed below, we find no reason to digress from that holding, and, from this determination, we additionally conclude that Cook has faded to establish that her discharge in retaliation for her candidacy resulted in a violation of any constitutionally protected right under the First Amendment.

A. Kentucky Precedent Addressing a Right to Candidacy

Our prior examination of whether there is a constitutional right to candidacy is, principally, found in three cases: Yonts v. Com. ex rel. Armstrong, 700 S.W.2d 407 (Ky.1985); Chapman v. Gorman, 839 S.W.2d 232, 237-238 (Ky.1992), and Crutchfield.⁹ Therefore, we begin our discussion with a brief review of these three important cases.

In Yonts, a board of education member (Yonts) declared his candidacy for the Kentucky House of Representatives, an office requiring the taking of the constitutional oath. Subsequently, the Attorney General brought a successful action to oust Yonts from his board seat pursuant to a “resign-to-run” statute which rendered ineligible any board of education member who became a candidate for nomination or election to a state office requiring the taking of the constitutional oath. On appeal to this Court, Yonts argued, inter alia, that the statute violated his First Amendment right to seek political office. In rejecting this argument, we dismissively observed that Yonts’s “Tree speech’ argument evokes but little reaction in this [ ] court.” Id. at 408.¹⁰ While we did not expressly decide so at that time, by this choice of words, we obviously expressed a strong doubt that there is a First Amendment right to candidacy, and, moreover, foreshadowed our later holding in Crutchfield.

In Chapman, 839 S.W.2d 232, we considered a challenge to the constitutional validity of anti-nepotism provisions of a statute that, with certain exceptions, prohibited anyone from serving as a school board member who had a relative employed by the school district. We acknowledged in Chapman the noncontroversial principle that candidacy is not a fundamental right: “The alleged injury ... does not involve a fundamental right because no such status is given to candidacy.” Id. at 237-238.¹¹ We left open, however, the question of whether some lesser, non-fundamental measure of constitutional protection was afforded to candidacy.

We answered that question in Crutch-field, another case involving the school board anti-nepotism statutes. In Crutch-field, as in Chapman, the Attorney General sought to oust from office a county board of education member under our anti-nepotism provisions. In again upholding the provisions, we stated, “[i]t [the anti-nepotism statute under review] does not inflict injury to Appellee’s right to candidacy, because no such constitutional status exists ” Id. at 624 (citing Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972)) (emphasis added). It bears emphasis that, whereas in Chapman we held there is no fundamental constitutional right to candidacy, in Crutchfield we broadened our expression to state that there is no constitutional right to this status at all. This remains the clearly identifiable law in this jurisdiction.

Since Crutchfield is otherwise dis-positive, for Cook to prevail on her First Amendment claim, as a preliminary matter, it would be necessary for us to overrule Crutchfield’s holding that there is no constitutional right to candidacy.¹² And while we recognize that “the doctrine of stare decisis is less rigid in its application to constitutional precedents,” Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), we must nevertheless bear in mind that its purpose is to “ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.” Chestnut v. Commonwealth, 250 S.W.3d 288, 295 (Ky.2008) (quoting Vasquez v. Hillery, 474 U.S. 254, 265-265, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986)).

The concurring opinion of Justice Abramson chastises our giving credence to the plain meaning of Crutchfield’s holding that there is no constitutional right to candidacy, a holding she would treat as mere dicta. However, we have no reason to suppose that the Crutchfield Court did not give careful consideration to this issue, and, moreover, we should not go down the road of recasting clear holdings as dicta in order to avoid adverse authority. The concurrence further suggests that Crutch-field is flawed because it relied principally upon Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). However, Bullock was one of the three principal cases relied upon in Newcomb v. Brennan, 558 F.2d 825 (7th Cir.1977), which is the origin of both the Seventh Circuit’s and the Sixth Circuit’s line of cases holding that there is no constitutional right to candidacy. Crutchfield was far from the first case to recognize Bullock for the proposition that there is no constitutional right to candidacy.

As further discussed below, based upon applicable United States Supreme Court precedent, persuasive federal circuit court precedent, our independent reconsideration of whether the First Amendment protects a right to candidacy, and principles of stare decisis, we are unable to conclude that the constitutional interpretation we adopted in Crutchfield should be disturbed. Stoll Oil Refining Co. v. State Tax Commission, 221 Ky. 29, 296 S.W. 351 (1927) (the stare decisis doctrine is entitled to great weight, and is adhered to unless the principle established is clearly erroneous).

B. United States Supreme Court Precedent Addressing a Right to Candidacy

The two United States Supreme Court decisions underpinning its jurisprudence on whether there is a constitutional right to candidacy are Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972) and Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982).

Bullock concerned an action challenging the constitutional validity of the Texas primary election filing fee system, which required candidates for some offices to pay a filing fee to be listed on the party primary ballots. In striking down the filing fee statutes on Equal Protection grounds, the Supreme Court stated, “[t]he initial and direct impact of filing fees is felt by aspirants for office, rather than voters, and the Court has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review.” Id. at 142-143, 92 S.Ct. 849 (emphasis added). This wording, obviously, is ambiguous upon the question of whether there is or is not a lesser, non-fundamental right to candidacy.

A decade later, in Clements, the Court considered a case brought by four elected Texas officials and twenty Texas registered voters challenging the constitutionality of: (1) a provision of the Texas Constitution rendering an officeholder ineligible for the state legislature if his current term of office was not scheduled to expire until after the legislative term to which he aspired began, and (2) a “resign-to-run” or “automatic resignation” provision, under which a wide range of state and county officeholders with more than one year left on their term of office were deemed to have automatically resigned if they became a candidate for another office. In upholding the provisions, the Supreme Court, citing Bullock, stated: “Far from recognizing candidacy as a ‘fundamental right,’ we have held that the existence of barriers to a candidate’s access to the ballot “‘does not of itself compel close scrutiny.’ ” Clements, 457 U.S. at 963, 102 S.Ct. 2836 (emphasis added).

In parsing the cited quotes from Bullock and Clements, other courts have reached opposite conclusions. Some courts have interpreted the Supreme Court’s holding that there is no fundamental constitutional right to candidacy to mean that there is, nevertheless, some residual constitutional right; that is, a right of lesser significance than a “fundamental” right, but a right nonetheless. See, e.g., Randall v. Scott, 610 F.3d 701 (11th Cir.2010). Adherents of this view hold that the Court’s ruling out of a “fundamental” First Amendment right to candidacy necessarily implies the existence of some other variant of a First Amendment right.

Other- courts interpret the same language from Bullock and Clements to mean that not only is there not a fundamental right to candidacy, but, by inference, that there is no constitutional right at all. See, e.g., Carver, 104 F.3d at 852-53; Newcomb v. Brennan, 558 F.2d 825 (7th Cir.1977); and Crutchfield, 157 S.W.3d 621. It appears that these courts have construed the Supreme Court’s refusal to expressly acknowledge a lesser level of First Amendment protection as a signal that there is none. Also factored into this view is the notion that had there been such a right, the Court could have easily have said so.¹³

While only the United States Supreme Court can definitively parse the unclear wording, we find significance in that Court’s use of the term, “far from” in the Clements quote, “Far from recognizing candidacy as a ‘fundamental right’ .... ” 457 U.S. at 963, 102 S.Ct. 2836. The phrase “far from” (used as an adverb) has an idiomatic meaning defined as “of a distinctly different and especially opposite quality than.”¹⁴ Under this definition, arguably the “especially opposite quality” of a fundamental right is “no right at all” (rather than “some right”).¹⁵ Therefore, a sound — and perhaps the better — parsing of Bullock and Clements is that there is no constitutional right at all to candidacy. If this parsing is correct, then our holding in Crutchfield is, of course, accurate. Out of due consideration for the doctrine of stare decisis, therefore, we will lean toward this interpretation.

Before ending our discussion of the Supreme Court cases, it is interesting to note that in United States Civil Service Commission v. National Association of Letter Carriers AFL-CIO, 418 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973), a Hatch Act case,¹⁶ the Court discusses a historical event which may give some insight into the original intent of the Framers of the United States Constitution concerning whether there is a First Amendment right to candidacy. The Letter Carriers decision references events occurring not long after our founding under the presidency of Thomas Jefferson:

Early in our history [in 1801],^[17] Thomas Jefferson was disturbed by the political activities of some of those in the Executive Branch of the Government. See 10 J. Richardson, Messages and Papers of the Presidents 98 (1899). The heads of the executive departments, in response to his directive, issued an order stating in part that ‘©he right of any officer to give his vote at elections as a qualified citizen is not meant to be restrained, nor, however given, shall it have any effect to his prejudice; but it is expected that he will not attempt to influence the votes of others nor take any part in the business of electioneering, that being deemed inconsistent with the spirit of the Constitution and his duties to it.’

Id. at 557, 93 S.Ct. 2880 (emphasis added). This anecdotal account of one of the principal Founder’s condemnation of electioneering by “officers” of the executive branch (which would seemingly encompass running for office) as “inconsistent with the spirit of the Constitution and his duties to it,” arguably hints that in the early years of the Republic, being a candidate for public office was not viewed as constitutionally protected under the First Amendment. If the “spirit of the Constitution” may proscribe public employees from candidacy, possibly the Founders did not intend to include a right to candidacy in the Amendment at all.¹⁸

Beyond Bullock and Clements we find little direction concerning the Supreme Court’s view on this precise issue.¹⁹ Clearly, Bullock and Clements are not at odds with our conclusion in Crutchfield. We simply find no reason to infer from the Supreme Court’s determination that the First Amendment embodies no fundamental right to candidacy, that there is, nevertheless, some lesser form of a constitutional right to candidacy found in the First Amendment. Thus, our Crutchfield decision and the decision we reach today may be comfortably reconciled with the two principal Supreme Court pronouncements on the issue.

C. U.S. Federal Circuit Precedent

We next examine select federal circuit court decisions relevant to our holding today. As discussed below, the Sixth Circuit and Seventh Circuit Court of Appeals have taken the initiative among the federal courts in concluding that there is no per se First Amendment right to mere candidacy, though, as noted in Justice Abramson’s concurrence, other jurisdictions hold otherwise.²⁰

The Seventh Circuit cases holding that there is no federal constitutional right to candidacy include Newcomb, Bart v. Telford, 677 F.2d 622 (7th Cir.1982), and Wilbur v. Mahan, 3 F.3d 214 (7th Cir.1993). In Newcomb, a discharged deputy city attorney alleged that his constitutional rights were violated by his dismissal from his position when, against the wishes of the city attorney, he announced his intention to run for Congress. In upholding the discharge, the court cited to Buckley v. Valeo, 424 U.S. 1, 39-59, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam); Bullock, 405 U.S. 134, 92 S.Ct. 849; and Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), and concluded that, “[t]hese decisions indicate that plaintiffs interest in seeking office, by itself, is not entitled to constitutional protection.” 558 F.2d at 828.²¹ In Bart, a city employee brought a complaint against the mayor and three of his subordinates after she was required to take a leave of absence while campaigning for mayor. In upholding the district court’s dismissal of this aspect of the complaint,²² Judge Posner stated as follows:

So far as the first allegation is concerned, that by forcing her to take a leave of absence the mayor infringed her First Amendment rights, the only right specifically alleged is the right to run for public office. The First Amendment does not in terms confer a right to run for public office, and this court has held that it does not do so by implication either. Newcomb v. Brennan, 558 F.2d 825, 828 (7th Cir.1977). It is true that political campaigns are important vehicles for the expression of ideas and opinions on public issues, notably by the candidates themselves, and therefore that restrictions on eligibility for public office could impair free speech. Nevertheless, this court held in Newcomb that a restriction on candidacy could not be presumed to have this effect; something more than the restriction had to be shown to bring the First Amendment into play.

Id. at 624 (emphasis added).

In Wilbur, a deputy sheriff brought a § 1983 action against the sheriff, claiming violation of his First Amendment rights. While the majority principally analyzed the case under the Elrod-Branti test,²³ in his concurrence, Judge Easterbrook, citing Clements, 457 U.S. 957, 102 S.Ct. 2836; Broadrick, 413 U.S. 601, 93 S.Ct. 2908; National Association of Letter Carriers AFL-CIO, 413 U.S. 548, 93 S.Ct. 2880, and United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), stated: “My colleagues treat a simple case governed by settled doctrine as if it were complex and novel. Much could be said for their discussion as an original matter, but it is not an original matter. The Supreme Court has held that, without violating the First Amendment, a public body may forbid its employees to run for elective office.” Wilbur, 3 F.3d at 219.

The key Sixth Circuit case finding no First Amendment right to candidacy is Carver, 104 F.3d 847,²⁴ a case factually indistinguishable from the case sub judice, and also the decision principally relied upon by the circuit court and the Court of Appeals in ruling against Cook. Narrowly stating the issue as “whether Carver, a deputy county clerk who was an at-will employee in a two-person office — the other person being the county clerk herself — had a First Amendment right to run against the incumbent clerk in the next election and still retain her job,” id. at 849, the Sixth Circuit affirmed the dismissal because it was not based upon Carver’s political beliefs or affiliations, but rather was related solely to Carver’s running for the county clerk position. Citing to Bart, 677 F.2d at 624, the court concluded that “Carver’s termination is neutral in terms of the First Amendment.” Carver, 104 F.3d at 852. After further discussion of authorities cited by the parties, the court held as follows:

In sum, we hold that no reading of the First Amendment required Dennis to retain Carver after Carver announced her intention to run against Dennis for Dennis’s office. To hold otherwise, on the facts of this case, would be to read out of the entire line of relevant Supreme Court precedent the factual requirements of political belief, expression and affiliation, partisan political activity, or expression of opinion, and to read into that precedent a fundamental right to candidacy. The First Amendment does not require that an official in Dennis’s situation nourish the viper in the nest. Dennis’s discharge of Carver did not implicate Carver’s First Amendment rights.

Id. at 853. Carver has since been followed in, Greenwell v. Parsley, 541 F.3d 401, 404 (6th Cir.2008), cert. denied 558 U.S. 817, 130 S.Ct. 64, 175 L.Ed.2d 25 (2009) (sheriffs firing of deputy after learning deputy planned to run against him in election did not violate deputy’s First Amendment rights) and Myers v. Dean, 216 Fed.Appx. 552, 554 (6th Cir.2007) (county clerk’s firing of deputy clerk after she ran against him in election did not violate First Amendment); Cf. Murphy v. Cockrell, 505 F.3d 446 (6th Cir.2007) (distinguishing Carver where termination by the PVA of a Deputy PVA following a rival candidacy was based upon the “employee’s political expressions during her own candidacy.”).

In her concurrence, Justice Abramson comprehensively surveys other federal circuit court precedent addressing a public employee’s candidacy rights, and so we do not duplicate that effort in our discussion. However, for the purpose of illustrating the opposing view, we will single out the recent Eleventh Circuit case, Randall v. Scott, 610 F.3d 701 (11th Cir.2010), which advises that “[precedent in the area of constitutional protection for candidacy [is] best described as a legal morass,”²⁵ an observation with which we agree. In Randall, Scott was elected a district attorney, and named Randall as her chief of staff. After his appointment, Randall decided to run for Chairman of the county board of commissioners. Serious dissention developed between Scott and Randall when Scott’s husband decided also to pursue the office. Randall nevertheless persisted in running, and under pressure from her husband, Scott fired Randall. In addressing Randall’s § 1983 claim against Scott, the Eleventh Circuit concluded “[e]ven though Clements does not make clear the degree of constitutional scrutiny required for candidacy restrictions, the Court does suggest that political candidacy is entitled to at least a modicum of constitutional protection,” 610 F.Sd at 712, and that “[a]n interest in candidacy, and expression of political views without interference from state officials who wish to discourage that interest and expression, lies at the core of values protected by the First Amendment.” Id. at 713.²⁶

Upon our review of these competing positions, and for the reasons further discussed below, we decline to follow the Eleventh Circuit’s reasoning in Randall,²⁷ and will instead endorse the view favored by the Sixth and Seventh Circuits, and previously endorsed by this Court in Crutchfield.

D. Additional Considerations

Our continued approval of Crutchfield and our corresponding rejection of Randall and similar cases is strengthened by the observation that the courts adhering to the Randall view have failed to explain, by example or otherwise, exactly what is the “modicum” of First Amendment interests that rests within the act of seeking elective office. They seem unable or unwilling to explain exactly what “some level” of “qualified” First Amendment rights is. A constitutional right is not an amorphous, vaporous thing, the presence of which may be sensed, but cannot be articulated or defined. We suggest that what is sensed in these decisions is not a First Amendment right or interest in being a candidate, but simply the fact that candidacy ordinarily becomes a complex activity in which candidates, like any citizen, may engage in actions that are explicitly protected by the First Amendment. Candidates speak and they publish. They assemble with others, they practice their religion, and they might even petition the government for redress of grievances. No one suggests that in becoming a candidate, such activities lose First Amendment protection. But the essential act of becoming a candidate and the condition of being a candidate for elective office are, in the final analysis, no more of an exercise of First Amendment liberty than applying for a job.

Stated differently, standing alone, candidacy is not expressive speech or conduct, nor does it alone implicate acts of association or assembly. Stripped of its accompaniment of expressive messages and assemblages of supporters (which is the situation we consider), candidacy alone communicates nothing of substance. Of course, while the status of candidacy itself enjoys no First Amendment protection, the candidate’s activities and associations, the organizing of supporters, and speaking and publishing on matters of public interest, receive the highest degree of First Amendment protections. Elrod v. Burns, 427 U.S. 347, 356, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). (“Political belief and association constitute the core of those activities protected by the First Amendment.”); Buckley, 424 U.S. 1, 15, 96 S.Ct. 612 (“The First Amendment protects political association as well as political expression.”).²⁸

Few, if any, legitimate acts are so highly regulated by state law as becoming a candidate for public office. Every state has constitutional and statutory qualifications for public office that were purposefully designed to limit or restrain the ability of persons to run for public office. Laws commonly, if not universally, impose upon candidacy geographic or residential restrictions, age and citizenship restrictions, and sometimes educational or experiential restrictions. Such laws effectively control the eligibility for elective office without any abridgment of First Amendment liberty because running for elective office is simply not among the rights secured by the First Amendment.

That candidacy has always been heavily burdened by state regulation in no way suggests that the state has unfettered power to obstruct an individual’s desire to seek elective office. But, in our view, the protection afforded by the United States Constitution to persons who desire to run for office is not derived from the First Amendment; rather, as illustrated by Bullock and Clements, it is found in the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause requires that state policies, including statutes and the employment policies of governmental agencies, that differentiate between those who may become a candidate for elective office and those who may not must bear a rational relationship to a legitimate state purpose. Mobley v. Armstrong, 978 S.W.2d 307, 309 (Ky.1998). Notably for our review, Cook does not assert that her firing violated Equal Protection principles.

E. Conclusion

In summary, we hold that the First Amendment affords no constitutional protection to candidacy for political office per se. Upon this determination, it necessarily follows that Cook has failed to state a claim under 42 USC § 1983. Accordingly, we conclude that the circuit court was correct in awarding summary judgment to Popplewell and Russell County, and dismissing Cook’s lawsuit.

Y. COOK HAS FAILED TO ALLEGE THE REQUISITE GROUNDS OF AN OFFICIAL CAPACITY SUIT

While the constitutional issue presented by this case is significant and dispositive, there is a further reason for affirming the trial court’s summary judgment. As noted above, a § 1983 claimant must establish both that she has been deprived of a federal right and that the defendant is responsible for the deprivation. Under the statute, government bodies are not subject to vicarious liability for the torts of their agents. Monell v. N.Y. City Dept. of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). For tortious conduct to provide a basis for a government body’s § 1983 liability, the tort — the deprivation of the plaintiffs right — must have been committed pursuant to the government body’s official policy. Id. This does not mean that the government body can never be found liable for a single decision meant to apply only to immediate circumstances. Pembaur, 475 U.S. at 480, 106 S.Ct. 1292 (“liability may be imposed [under § 1983] for a single decision”). Nor does it mean that every decision by an officer of the government automatically subjects the government to liability. Rather:

[mjunicipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. The fact that a particular official — even a policy-making official — has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion .... The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable.

Id. at 481-83, 106 S.Ct. 1292 (citation and footnotes omitted). A suit against a person in his or her official capacity is a suit against the office and not the person. To maintain her suit against Russell County, Cook had to show that Popplewell had final authority to establish official county policy with respect to the hiring of her deputy clerks. This Cook has failed to do.

In her reply brief, Cook asserts that because Popplewell was acting “within her purview” as County Clerk when she discharged Cook, she was acting as county policymaker. But, as the United States Supreme Court has stated, the mere fact that the official has discretion in the exercise of particular functions does not by itself subject the County to liability. Id. at 481-82, 106 S.Ct. 1292. The official must have policymaking authority as well. Id. As the source of that authority, Cook refers us to KRS 64.530, which provides for the compensation of county officers, employees, deputies and assistants, and members of the fiscal court. Subsection (3) of the statute provides that the fiscal court shall fix the maximum amount officers may expend for deputies and assistants, but that the officer may determine the number of deputies and assistants to be hired and the individual compensation of each. While this statute is a source of the discretion Popplewell exercised when she discharged Cook, it says nothing about the County Clerk’s authority to establish county hiring policies, such as a policy prohibiting deputy clerks from running for elective office. If anything, it suggests that that authority remains in the fiscal court along with its ultimate authority over the size of the County Clerk’s budget. Indeed, Cook’s complaint cites the Russell County Administrative Code as the source of County employment policies. Be that as it may, it remains that Cook has only shown that Popplewell had discretion to hire and fire her deputies, which is not enough to establish official capacity or county liability. See also Caudill, 431 F.3d at 900 (Sixth Circuit held that the plaintiffs’ failure to offer evidence that the Boyd County Clerk had the authority to establish county hiring policy supported summary judgment in favor of Clerk sued in her official capacity).²⁹ For this reason, too, we are convinced that the trial court’s summary judgment was appropriate.

YI. COOK’S FOURTEENTH AMENDMENT CLAIM DOES NOT PERMIT REVIEW

Finally, Cook asserts that if the First Amendment does not protect her interest in being a candidate, then the Due Process Clause of the Fourteenth Amendment does. We decline to address this issue, as Cook has devoted a mere two paragraphs of her brief to this very large question and has referred us only to a single federal District Court opinion in support of her Due Process Clause assertion. It is not clear from Cook’s brief whether she is asserting a substantive or a procedural right, but if procedural she has not indicated what process was due. Civil Rule 76.12(4)(c)(v) requires the parties’ opening briefs to include “ample supportive references to the record and citations of authority pertinent to each issue of law.” (emphasis supplied). Cook’s cursory Fourteenth Amendment Due Process Clause argument does not comply with the rule, and for that reason, we decline to address it. Cf. Doherty v. City of Chicago, 75 F.3d 318, 324 (1996) (discussing the requirements of the comparable federal appellate rule).

VII. CONCLUSION

For the reasons explained, we affirm the judgment of the Russell Circuit Court awarding summary judgment in favor of Popplewell and Russell County.’

CUNNINGHAM, SCHRODER, and SCOTT, JJ., concur. ABRAMSON, J„ concurs in result only by separate opinion in which MINTON, C.J., and NOBLE, J., join.

1 . Though Crutchfield is otherwise dispositive of the case, the trial court’s order awarding summary judgment did not cite that decision.

2 . In her concurring opinion, Justice Abram-son suggests that we should have avoided the First Amendment issue presented here, and decided the case upon the deficiencies in Cook’s § 1983 pleadings, or upon the grounds that Cook’s conduct in the workplace may have justified her dismissal. However, even the concurrence notes that the issue we address "is properly before us.” And, basing an opinion as the concurrence suggests, on Cook’s speech and conduct in the workplace does not avoid a constitutional issue, it simply substitutes a different one — one not raised in the petition before us. Finally, and more importantly, in granting review of the issues presented, we recognized an overarching need to resolve this point of law and to state with clarity the reasons for our decision.

3 . Clevinger v. Board of Educ. of Pike County, 789 S.W.2d 5, 12 (Ky.1990), held that public school boards of education were shielded by state immunity law from liability under 42 U.S.C. § 1983. Although Hewlett unambiguously abrogated that holding, see Jefferson County Fiscal Court v. Peerce, 132 S.W.3d 824, 835 (2004), we nevertheless, as additional guidance, now clarify that Clevinger is expressly overruled.

4 . Cook makes no specific statutory claims or arguments relating to the Kentucky Constitution. Thus this case is decided solely upon this Court’s interpretation of the First Amendment of the United States Constitution.

5 . In her original complaint, Cook alleged a far broader violation of her constitutional rights, stating: “Plaintiff was terminated in violation and contravention of both the Constitution of the Commonwealth of Kentucky and the First and Fourteenth Amendments of the United States Constitution. Specifically, Plaintiff’s exercise of the freedom of speech, the freedom to express her political beliefs, the freedom to seek public office, the freedom of association, the exercise of political franchise, the exercise of political patronage, the right of enjoying life and liberty, and the right of freely communicating thoughts and opinions were among the liberties, rights, and privileges to which Plaintiff was entitled that were breached by the Defendants in terminating the employment of Plaintiff.” Because Cook maltes no claims on appeal in pursuit of these additional alleged infringements, they are deemed to be waived. Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 815 (Ky.2004).

6 . The First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

7 . In her deposition testimony, Cook testified that she "believe[d] that [she was] fired solely because [she] announced [she] were going to run against [Popplewell] for county clerk.” (emphasis added). Similarly, in her opening brief, Cook states as follows: "Stacie contends that her rival candidacy was the sole reason for her firing,” (emphasis added), and that this appeal presents the following "concise issue[]”: "Popplewell, the incumbent clerk, fired Stacie, a deputy clerk, because of her rival candidacy. Did Popplewell’s firing of Stacie violate her rights under the United States Constitution?”

8 . In her separate opinion, Justice Abramson criticizes our consideration of candidacy per se (meaning candidacy in isolation, unattached to the forms of expression typically associated with a run for public office) as a "sort of metaphysical” concept undeserving of our attention. However, that is precisely the issue as framed by Cook herself, who by her own account, was discharged solely on account of her candidacy, and not for any associated expressive speech, conduct, or associational activities. Moreover, as further discussed herein, federal courts in the Sixth, Seventh, and Eleventh Circuits have each addressed this precise issue in Carver v. Dennis, 104 F.3d 847 (6th Cir.1997); Newcomb v. Brennan, 558 F.2d 825 (7th Cir.1977); and Randall v. Scott, 610 F.3d 701 (11th Cir.2010), respectively. See also Deemer v. Durell, 110 F.Supp.2d 1177 (S.D.Iowa 1999) (discussing cases that "have found that there is no per se right to candidacy.”) The issue we address is far from original to this case, and the terminology is well established in this area of review.

9 . See also Combs v. Huff, 858 S.W.2d 160, 163 (Ky.1993) (there is no fundamental right to gain ballot access) and Mobley v. Armstrong, 978 S.W.2d 307 (Ky.1998) (two year residency requirement to run for district court judgeship does not violate equal protection.).

10 . This wording was adopted from the decision of the circuit court.

11 . Citing Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Yonts, 700 S.W.2d 407; J. Nowak, R. Rotunda, and J.N. Young, Constitutional Law, Chap. 16, § VIII, p. 776, (2d ed.1983); and L. Tribe, American Constitutional Law, § 13-19 (2d ed.1988). The decision further noted that various federal circuit courts of appeal, under Equal Protection Clause analysis and First Amendment challenges have adhered to Bullock in holding that there is no fundamental right to candidacy (citing Stiles v. Blunt, 912 F.2d 260, 265 (8th Cir.1990); Zielasko v. State of Ohio, 873 F.2d 957 (6th Cir.1989); Batten v. Rains, 854 F.2d 687, 693 (5th Cir.1988); and Plante v. Gonzalez, 575 F.2d 1119, 1126 (5th Cir.1978)).

12 . Coolc cites us to the Court of Appeals decision in Allen v. Board of Education of Jefferson County, 584 S.W.2d 408 (Ky.App.1979), a case which considered two teachers who were forced to take a leave of absence pursuant to school policy because they were candidates for public office in the 1977 General Election. Allen held the school policy "inappropriate,” explaining: "The appellants, by running for the legislature, were exercising their rights of free speech and association. These rights are protected by the First Amendment to the United States Constitution and may not be abridged without proof of compelling state interest.” To the extent that Allen conflicts with our decision in this case, it is accordingly overruled.

13 . For example the Court could have said:

"While there is a constitutional right to candidacy, that interest does not rise to the level of a fundamental right.’'

14 . http://www.merriam-webster.coin/ dictionary/far (select "adverb”) (all internet cites last viewed December 12, 2011).

15 . Merriam-Webster uses the example "the trip was far from a failure” — meaning the trip was a success — to illustrate the idiomatic usage of the phrase.

16 . Generally, the Hatch Act (5 U.S.C.A. §§ 1501 to 1508, 7321 to 7326) prohibits certain government employees from engaging in certain political activities or from being partisan candidates for elected office.

[17] 17. See McCormick v. Edwards, 646 F.2d 173, 176-177 (5th Cir.1981), for a more detailed discussion of this event. This decision also notes that in 1907, President Theodore Roosevelt issued an executive order to the effect that federal civil servants, "while retaining the right to vote as they please and to express privately their opinions on political subjects, shall take no part in political management or political campaigns." Exec. Order No. 642 (June 3, 1907) (emphasis added). See also McAuliffe v. City of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892), which upholds the discharge of a policeman who displeased the mayor by engaging in political activities. Justice Holmes, then of the Supreme Judicial Court of Massachusetts, held that the mayor could lawfully discharge the politically active policeman, famously stating "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”

18 . Or, alternatively, if they intended a First Amendment right for the general public, did not intend that the right to extend to public employees (the situation we address). Though this would not agree with the modem cases under which public employees are not be seen as forfeiting their constitutional rights altogether, but rather, that constitutional rights survive their governmental employment, but are, where applicable, subordinated to significant governmental interests.

19 . Cf., for example, Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (upholding Oklahoma statute which provided that certain public officials shall not be a member of any national, state or local committee of a political party, or an officer or member of a committee of a partisan political club, or a candidate for nomination or election to any paid public office upheld because the statute regulated political activity in an even-handed and neutral manner); National Association of Letter Carriers, AFL-CIO, 413 U.S. 548, 93 S.Ct. 2880 (upholding federal Hatch Act prohibition against federal employees taking an active part in political management or in political campaigns on the basis that neither First Amendment nor any other provision of Constitution invalidated Congress’s barring such partisan political conduct by federal employees); United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947) (Congress may regulate the political conduct of government employees within reasonable limits, though the regulation trenches to some extent upon unfettered political action, the extent of regulation lying primarily with Congress, and courts will interfere only when such interference passes beyond the general existing conception of governmental power, as developed from practice, history, and changing educational, social and economic conditions.); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (Ohio election laws making it virtually impossible for new political party, even though it has hundreds of thousands of members, or an old party, which has very small number of members, to be placed on state ballots to choose electors pledged to particular candidates for Presidency and Vice-Presidency of United States resulted in denial of equal protection of the laws); and Buckley v. Valeo, 424 U.S. 1, 39-59, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam) (holding, inter alia, that provisions limiting expenditures by candidates on their own behalf violated the candidates' rights to freedom of speech).

20 .Justice Abramson’s concurrence comprehensively discusses cases from other federal circuits addressing whether there is a constitutional right to candidacy, and so we do not duplicate her effort in our discussion. See also, 44 A.L.R. Fed. 306, Prohibiting Public Employee From Running for Elective Office as Violation of Employee's Federal Constitutional Rights.

21 . Noting that the deputy city attorney’s complaint implicated interests which are broader than a per se right to candidacy (i.e. that the firing represented punishment by the state based on the content of a communicative act) the court concluded “that under the circumstances of this case, plaintiff's interest in seeking office was protected by the First Amendment.”

22 . The court held that plaintiff’s complaint that she was harassed after returning to work from her unsuccessful campaign was cognizable.

23 . See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980).

24 . The circuit court applied Carver as though it was bound by the decision as controlling precedent. That, however, is not a correct application of Sixth Circuit precedent. Natural Resources and Environmental Protection Cabinet v. Kentec Coal Co., 177 S.W.3d 718, 725 (Ky.2005) (“Decisions of the lower federal courts are not conclusive as to state courts[.]”)

25 . Citing Cutcliffe v. Cochran, 117 F.3d 1353, 1360 (11th Cir.1997) (Harris, Senior U.S. District Judge sitting by designation and specially concurring) ("Is there confusion in this area of law? Members of the Supreme Court are among those who have expressed their belief that there is, and my study of the subject matter leads me to the same conclusion.”).

26 . The defendants did not seek certiorari on this holding.

27 . We note that Randall has received scholarly criticism for its interpretation of Buttock and Clements. See Kevin C. Quigley, Comment, Wading Through the "Morass”: The Eleventh Circuit Recognizes a Right to Candidacy in Randall v. Scott, 52 B.C. L.Rev. E. Supp. 185 (2011), http://www.bc.edu/bclr/ esupp_2011/15_quigley.pdf., which concludes that ‘‘the Eleventh Circuit’s novel approach, although well intentioned, is only tenuously grounded in Supreme Court precedent!,] ” id. at 185, and ‘‘[n]either [Bullock nor Clements ] supports the proposition that candidacy enjoys per se constitutional protection.” Id. at 189.

28 . Justice Abramson asserts that candidacy is "seemingly one of the most basic forms of speech a democratic society fosters,” and that Cook’s candidacy is speech on a matter of public importance because it carries the "nascent message” that she would be a better county clerk than Popplewell. It is not candidacy itself however, that constitutes the "message.” There are enumerable reasons why one may choose to be a candidate. Some candidates seek only the prestige, power, and trappings of the office, with little concern for who is the better public servant. Others, with no real expectation of winning the office, run to gamer attention to promote themselves in other undertakings, such as to attract clients for their law practice. Candidacy may be the mechanism that bears their messages, but it is not the message. Words written on a sheet of paper may be expressive communication, but the blank paper itself is not. For an interesting discussion of the point, in a different context, see Nevada Com'n on Ethics v. Carri-gan, - U.S. -, 131 S.Ct. 2343, 180 L.Ed.2d 150 (2011) (Explaining why a legislative vote is not expressive conduct); Cf. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (expressive value was “not created by the conduct itself but by the speech that accompanies it”).

29 . In Caudill, the newly elected Boyd County Clerk fired three deputy clerks who had supported her opponent in the election. The Sixth Circuit held that "patronage dismissals of Kentucky deputy county clerks with routine duties violates (sic) the U.S. Constitution.” 431 F.3d at 910. However, the County Clerk could not be held liable in her official capacity because there was no evidence she had final policymaking power with respect to the hiring/rehiring of deputy clerks "for political or patronage reasons." Id. at 915. The Court did remand the claims against the County Clerk in her individual capacity to the trial court because she was not entitled to qualified immunity given the clearly established law prohibiting patronage dismissal of clerical-type workers.