# Cook v. Popplewell

> Kentucky Supreme Court · December 22, 2011 · 394 S.W.3d 323

URL: https://www.frixlaw.com/law-library/cases/5112812

## Case

- **Full name:** Stacie L. COOK v. Lisha POPPLEWELL, in her Capacity as County Clerk of Russell County, Kentucky and Russell County, Kentucky
- **Court:** Kentucky Supreme Court
- **Decided:** December 22, 2011
- **Citations:** 394 S.W.3d 323; 33 I.E.R. Cas. (BNA) 1377; 2011 Ky. LEXIS 174; 2011 WL 6542995
- **Precedential status:** Published
- **Opinion:** Concurrence by Abramson
- **Judges:** Abramson, Cunningham, Minton, Noble, Only, Schroder, Scott, Venters
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5112812

## How later opinions describe it (automated extraction)

- stating that KRS § 64.530(3) is the source of the discretion a county clerk has when discharging a deputy clerk

## Opinion text

ABRAMSON, Justice,
concurs in result only:
I concur with the majority’s discussion of many of the issues raised by this appeal, and I concur in its ultimate conclusion that Appellant Stacie Cook is not entitled to relief under 42 U.S.C. § 1983 . I write separately because I cannot agree that candidacy, running for office, seemingly one of the most basic forms of speech a democratic society fosters, enjoys no protection under the First Amendment. That nevertheless is the distinctly minority view the Court today adopts. Because deciding that constitutional question is not necessary to our decision, and because I strongly disagree with the majority’s reading of the First Amendment, I respectfully decline to join the majority opinion and concur in result only.
RELEVANT FACTS
As noted, Appellant Cook, a deputy clerk in the Russell County Clerk’s office, sought election to the office of County Clerk in opposition to her boss, the incumbent County Clerk, Lisha Popplewell. Although there is some dispute about precisely what occurred between the two women, there is no dispute that shortly *340 after Cook began making known her fledgling candidacy by informing co-workers of her decision and soliciting support from her customers, Popplewell discharged her. Eventually Cook brought suit in the Russell Circuit Court under 42 U.S.C. § 1988 . She alleged that Popplewell in her official capacity as County Clerk and Russell County violated her rights under the First Amendment to the United States Constitution when they retaliated against her for seeking office. Granting the defendants’ motion for summary judgment, the trial court ruled, among other things, that Cook’s candidacy did not implicate the First Amendment and so could not provide the basis for § 1988 relief. When the Court of Appeals upheld that ruling, relying heavily on the Sixth Circuit Court of Appeals’ opinion in Carver v. Dennis, 104 F.3d 847 (6th Cir.1997), Cook sought and was granted discretionary review in this Court.
ANALYSIS
I. Because There Are Other Grounds for Disposition of the Case, the Issue of the Constitutional Protection Accorded Candidacy Need Not Be Decided.
Although we accepted review of this case in large part because of the constitutional question it posed, and although that is the question upon which both the parties and the courts below focused their attention, it is a “long-observed principle that Constitutional adjudication should be avoided unless strictly necessary for a decision in the case.” Spees v. Kentucky Legal Aid, 274 S.W.3d 447, 449 (Ky.2009) (citation and internal quotation marks omitted); Camreta v. Greene, — U.S. -, 131 S.Ct. 2020, 2031 , 179 L.Ed.2d 1118 (2011) (there is a “longstanding principle of judicial restraint ... that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” ’) (quoting from Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 445 , 108 S.Ct. 1319 , 99 L.Ed.2d 534 (1988)). While the constitutional protection to be accorded candidacy is appropriately addressed, there is no need to decide this important constitutional question in the case before us, because there are non-constitutional grounds and less far reaching grounds precluding the relief Cook seeks, regardless of whether candidacy is or is not constitutionally protected.
In the first place, as the majority observes, Cook pursued an official capacity theory of § 1983 liability, but she failed to allege facts which would permit a finding that she was discharged pursuant to official policy, a necessary element in an “official capacity” cause of action. The trial court offered this as an alternative reason for granting the defendants’ summary judgment motion and we could properly affirm its ruling on that ground alone.
In the second place, even if Cook’s candidacy enjoyed a measure of constitutional protection, as I believe it does, that protection does not extend to campaign activities disruptive of the workplace. By Cook’s own admission she campaigned while at work and during her County work time. Indeed, in a small public office such as the Russell County Clerk’s office, it may well have been impossible for Cook not to inject her candidacy into the workplace. Regardless, the fact that she did justified her discharge. The discharge was not, therefore, a violation of her constitutional rights, however construed, and so deciding this particular case does not require a definitive decision on the constitutional issue the Court takes up.
II. Candidacy Enjoys Qualified First Amendment Protection.
Because Cook is not entitled to 42 U.S.C. § 1983 relief for the reasons I have *341 briefly summarized, I concur in the Court’s decision to the extent that it reaches that result. I do not concur in the majority’s constitutional analysis, however, and so turn now to the difficult question of candidacy’s status under the First Amendment. I agree with those several courts which have recognized candidacy’s First Amendment implications, but have held that the right of state employees to be candidates is subject to reasonable restriction in light of the State’s compelling interest in the efficient and non-partisan provision of governmental services.
Under what has come to be referred to as Pickering [v. Board of Education, 891 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968)]/Branti [v. Finkel, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980)] analysis, 30 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).
Where the conduct at issue can be deemed speech for First Amendment purposes, the United States Supreme Court has explained that the employee must show that he or she spoke as a citizen on a matter of public concern, as opposed to speech addressing merely personal matters — such as intra-office grievances — or speech owing its existence to the employee’s professional responsibilities. Garcetti v. Ceballos, 547 U.S. 410 , 126 S.Ct. 1951 , 164 L.Ed.2d 689 (2006). As the quote from Umbehr indicates, moreover, even speech on matters of public concern may be restricted, if it impairs the government employer’s efficient operation. Connick v. Myers, 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983) (citing Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968)). Recognizing the enormous variety of circumstances in which these issues may arise, the Court has cautioned that each case requires a particularized balancing of *342 the competing interests and that the government employer’s burden in justifying a particular discharge will vary “depending upon the nature of the employee’s expression.” Con nick, 461 U.S. at 150 , 103 S.Ct. 1684 .
Where the conduct at issue implicates the employee’s interest in association and belief, the Court has held that, generally, adverse employment actions for supporting or for failing to support a particular political party are unconstitutional. Elrod v. Burns, 427 U.S. 347 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980); Rutan v. Republican Party of Illinois, 497 U.S. 62 , 110 S.Ct. 2729 , 111 L.Ed.2d 52 (1990). 31 The same rule applies to adverse employment decisions based upon support of and loyalty to a particular candidate as distinguished from a political party. Jordan v. Ector County, 516 F.3d 290 (5th Cir.2008). The Supreme Court has recognized an exception to the general rule, however, when “the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti, 445 U.S. at 518 , 100 S.Ct. 1287 (recognizing party affiliation could be relevant to policymaking and “confidential” positions such as aides to a governor who assist in writing speeches, communicating with the press or conferencing with the legislative branch).
Many cases, of course, do not fall neatly into one category or the other, but present instances of expression intermixed with elements of association or belief. Such cases, the Supreme Court has indicated, may be accommodated by the same sort of “reasonableness analysis” implicit in the approaches mandated by Pickering and Branti. O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 719 , 116 S.Ct. 2353 , 135 L.Ed.2d 874 (1996). See, e.g., Rodriguez Rodriguez v. Munoz Munoz, 808 F.2d 138 (1st Cir.1986) (discussing the analysis of hybrid First Amendment eases); McBee v. Jim Hogg County, Texas, 730 F.2d 1009 (5th Cir.1984). (same).
Cook maintains that her expressed intention of seeking election to the office of Russell County Clerk — her candidacy— implicates both her right to speak on matters of public concern as well as her right to associate with her political supporters and that her discharge violated those First Amendment rights. Courts have approached such contentions warily, for, as the Court of Appeals for the Eleventh Circuit recently observed, “[precedent in the area of constitutional protection for candidacy can be best described as a legal morass.” Randall v. Scott, 610 F.3d 701, 710 (11th Cir.2010). Much of the problem stems from the fact that the United States Supreme Court has never addressed candidacy in the context of an employment action, such as this one, where an employee’s candidacy is alleged to have provoked employer retaliation. Absent that direct precedent, the lower courts have sought to apply cases from other contexts, most of them involving legislative or state constitutional restrictions on candidacy, and most of them addressing equal protection challenges. In that context, the U.S. Supreme Court has emphasized the interrelatedness of candidates’ rights and voters’ rights and has focused its concern on “the tendency of ballot access restrictions ‘to limit the field of candidates from which voters might choose.’ Therefore, ‘[i]n approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.’” Anderson v. Celebrezze, 460 U.S. 780, 786 , 103 S.Ct. 1564 , 75 L.Ed.2d 547 *343 (1988) (quoting from Bullock v. Carter, 405 U.S. 134, 143 , 92 S.Ct. 849 , 31 L.Ed.2d 92 (1972)). Using that approach, the Court has struck down restrictions with a tendency to exclude candidates who are independent of any political party or who represent a minority party. Anderson; Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173 , 99 S.Ct. 983 , 59 L.Ed.2d 230 (1979); Bullock v. Carter; Williams v. Rhodes, 393 U.S. 23 , 89 S.Ct. 5 , 21 L.Ed.2d 24 (1968). Although focused on the rights of voters, these cases would seem to recognize, implicitly at least, a candidate’s own correlative rights of expression and association. See, e.g., Illinois Elections Bd., 440 U.S. at 186 , 99 S.Ct. 983 (“an election campaign is a means of disseminating ideas as well as attaining political office.”); Anderson, 460 U.S. at 788 , 103 S.Ct. 1564 (“a candidate serves as a rallying-point for like-minded citizens.”).
On the other hand, the Supreme Court has recognized the strong interest that States have in assuring the orderliness, integrity, and reliability of the electoral process and in disqualifying individuals whose candidacy would frustrate “legitimate state goals which are unrelated to First Amendment values.” Anderson, 460 U.S. at 788, n. 9 , 103 S.Ct. 1564 . It has upheld, accordingly, generally-applicable and evenhanded restrictions on candidacy reasonably furthering those interests. Clements v. Fashing, 457 U.S. 957 , 102 S.Ct. 2836 , 73 L.Ed.2d 508 (1982); Storer v. Brown, 415 U.S. 724 , 94 S.Ct. 1274 , 39 L.Ed.2d 714 (1974).
Notably, in Clements , which upheld Texas constitutional provisions limiting the right of certain state and federal office holders to seek election to the Texas legislature during their current terms, the right to candidacy was distinguished from the right to vote, and, for equal protection purposes, was deemed to be of less constitutional import: “Far from recognizing candidacy as a ‘fundamental right,’ ” the Court observed,
we have held that the existence of barriers to a candidate’s access to the ballot ‘does not of itself compel close scrutiny.’ ... Decision in this area of constitutional adjudication is a matter of degree, and involves a consideration of the facts and circumstances behind the law, the interests the State seeks to protect by placing restrictions on candidacy, and the nature of the interests of those who may be burdened by the restrictions.
Clements, 457 U.S. at 963 , 102 S.Ct. 2836 (quoting from Bullock v. Carter, 405 U.S. 134, 143 , 92 S.Ct. 849 , 31 L.Ed.2d 92 (1972)). While, as discussed more fully infra, a few courts have seized on the language rejecting the proposition that candidacy is a “fundamental right” to conclude that candidacy is entitled to no First Amendment protection whatsoever, Clements itself suggests the contrary. Having decided the case on equal protection grounds, the Court briefly addressed the alternative First Amendment argument by noting, “We have concluded that the burden on appellees’ First Amendment interests in candidacy are so insignificant that the classifications [of the Texas constitutional provisions] may be upheld consistent with traditional equal protection principles. The State’s interests in this regard are sufficient to warrant the de minimis interference with appellees’ interests in candidacy.” Id. at 971-72 , 102 S.Ct. 2836 32 *344 (emphasis supplied). See also Randall v. Scott, 610 F.3d at 712 (“Even 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.”)
Attempting to apply these non-employment cases to the employment arena, where the State is acting not as sovereign with an interest in regulating the election process, but as employer with an interest in the efficient provision of governmental services, several courts have recognized that while candidacy may not be a fundamental right eliciting the sort of exacting judicial scrutiny accorded the right to vote, it is, nevertheless, an important right with First Amendment implications. Accordingly, in most cases involving claims of retaliatory discharge because of the employee’s candidacy, the courts have engaged in some sort of Pickering/Branti balancing to assess whether the discharge was justified notwithstanding its encroachment upon the employee’s First Amendment right. See, e.g., Randall v. Scott, 610 F.3d at 710-11 (candidacy enjoys at least some First Amendment protection; district attorney’s reason for dismissing candidate-employee (running against her husband for county commissioner) was purely personal reason that did not survive Branti balancing) 33 ; Jordan v. Ector County, 516 F.3d at 297-98 (deputy clerk’s candidacy involves both speech on matter of public concern and political affiliation and caused no work disruption; jury damage award affirmed); Jantzen v. Hawkins, 188 F.3d 1247, 1257 (10th Cir.1999) (deputy sheriffs candidacy against his boss was a manner of political speech on matter of public concern but his candidacy interest did not outweigh state’s interest in effective law enforcement); Wilbur v. Mahan, 3 F.3d 214, 215-16 (7th Cir.1993) (deputy sheriffs candidacy against his boss is a form of political speech but dismissal justified because deputy occupies a policymaking position as described in Branti); Finkelstein *345 v. Bergna, 924 F.2d 1449, 1453 (9th Cir. 1991) (unsuccessful candidacy of deputy district attorney is a protected communicative act but district attorney had qualified immunity justifying summary judgment in his favor).
The balancing approach employed in these cases is in accord with the balancing of interests the Supreme Court applied in the ballot access cases discussed above. It is also in accord with United States Civil Service Commission v. National Association of Letter Carriers AFL-CIO, 413 U.S. 548 , 93 S.Ct. 2880 , 37 L.Ed.2d 796 (1973) and Broadrick v. Oklahoma, 413 U.S. 601 , 93 S.Ct. 2908 , 37 L.Ed.2d 830 (1973), in which the Supreme Court upheld the Hatch Act and its state law counterparts. With the Hatch Act, Congress prohibited partisan political activity by virtually all federal employees. In Letter Carriers, the Court discussed the government’s different roles as sovereign and as employer and applied Pickering as the appropriate means in the employment context for determining whether the government’s interest in developing a non-partisan, merit-based work force justified the Hatch Act’s far-reaching restrictions on employee First Amendment activity. 413 U.S. at 564, 93 S.Ct. 2880 .
As noted, the trial court in this case did not engage in any sort of Pickering/Branti balancing of interests, but instead, relying on Carver v. Dennis, 104 F.3d at 847 , ruled that Cook’s candidacy enjoyed no constitutional protection whatsoever and so could not provide the basis for § 1983 relief. In Carver , the Sixth Circuit upheld the dismissal of a deputy clerk who had declared her candidacy for County Clerk in opposition to her boss. The two women were the only employees in the County Clerk’s office and apparently worked at close quarters. Quoting the language from Clements v. Fashing, 457 U.S. at 963 , 102 S.Ct. 2836 , referred to above, that candidacy is not a “fundamental right,” the Sixth Circuit opined that restrictions on candidacy unrelated to the candidate’s political views do not implicate the First Amendment. It was within the County Clerk’s prerogative, that federal appellate Court believed, to adopt an office policy forbidding all employees (ie., the lone deputy clerk) to run for Clerk, and the deputy clerk’s dismissal could be deemed to imply the application of just such a policy. Because in the Court’s view the deputy clerk’s dismissal stemmed not from any message her candidacy might convey, but solely from the implicit ban on candidacy itself, the Court held there was no protected interest on which to premise a § 1983 claim. On the facts of the ease, moreover, 34 the Court believed that the deputy clerk’s opposition could be deemed insubordinate, and the County Clerk was under no First Amendment obligation to “nourish the viper in the nest.” 104 F.3d at 853 .
Although the Sixth Circuit continues to follow Carver, see Greenwell v. Parsley, 541 F.3d 401 (6th Cir.2008), it appears that the Seventh Circuit is the only other Circuit to have expressed the view that candidacy as such enjoys no First Amendment protection. Newcomb v. Brennan, 558 F.2d 825, 828 (7th Cir.1977) (“plaintiffs interest in seeking office, by itself, is not entitled to constitutional protection.”) 35 Several oth *346 ers, as noted above, have held that dismissals of state employees who have announced candidacy for office, like other alleged First Amendment retaliations, are appropriately analyzed under Pickering and Branti . We, of course, look to the Sixth Circuit with a great deal of respect, but as the Court of Appeals noted, we are not bound by Sixth Circuit precedent. Commonwealth v. Kentec Coal Co., Inc., 177 S.W.3d 718 (Ky.2005); ASARCO Incorporated v. Radish, 490 U.S. 605 , 109 S.Ct. 2037 , 104 L.Ed.2d 696 (1989) (noting state court authority to interpret federal law); United States ex rel. Lawrence v. Woods, 432 F.2d 1072 (7th Cir.1970) (opining that because only the Supreme Court has authority to review state court interpretations of federal law, only its decisions are binding on those courts). Having carefully considered First Amendment precedent, I am convinced that Carver , and now this Court, relies unduly on a strained and dubious reading of Clements v. Fashing, a single opinion addressing facts far different from those before us. Moreover, both Carver and the majority in this case disregard the Supreme Court’s Pickering and Branti line of decisions recognizing that while the First Amendment rights of public employees are subject to significant curtailment, they nevertheless remain protected against arbitrary or unreasonable state interference.
The majority justifies its disregard of that precedent by invoking what it refers to as “candidacy per se,” a sort of metaphysical “candidacy” divested of a real candidacy’s speech and associational attributes. Since “candidacy” in this rarefied sense excludes, by definition, any sort of communicative activity, it cannot, the Court concludes, implicate the First Amendment. The fact that candidacy may be regulated as such, however, without regard for any particular candidate’s views or message, does not mean that “candidacy” somehow exists independently of real candidates, a sort of content-less ideal to which candidates attach their particular concerns. It means only that candidacy is like other forms of speech, which likewise are subject to reasonable, viewpoint neutral regulation. There is no such thing as “candidacy” apart from real candidates’ speech and associational aspirations, and there is no regulation of candidacy that does not bear upon these interests. The Court of Appeals for the First Circuit has illustrated this point nicely by identifying several ways in which candidacy as such implicates First Amendment concerns:
The fact of candidacy alone may open previously closed doors of the media. The candidate may be invited to discuss his views on radio talk shows; he may be able to secure equal time on television to elaborate his campaign program; the newspapers may cover his candidacy; he may be invited to debate before various groups that had theretofore never heard of him or his views. In short, the fact of candidacy opens up a variety of communicative possibilities that are not available to even the most diligent of pieketers or the most loyal of party followers.
Mancuso v. Taft, 476 F.2d 187, 196 (1st Cir.1973) (modified on other grounds in Magill v. Lynch, 560 F.2d 22 (1st Cir. 1977)). See also Buckley v. Valeo, 424 U.S. 1 , 96 S.Ct. 612 , 46 L.Ed.2d 659 (1976) (discussing how even neutral restrictions that affect a candidate’s access to expressive outlets strongly implicate the First Amendment). Similarly, as a focal point in the public debate, a candidate enjoys opportunities for association unavailable to non-candidates.
Even if there were meaning in the Court’s “candidacy per se ” distinction, the distinction would not apply here because, to the extent Cook was discharged because *347 of her candidacy, it was not because she was running for public office as such, but because her particular candidacy was in opposition to Popplewell. That particular candidacy thus expressed a nascent message on a matter clearly of public concern: that Cook would be a good County Clerk and a better one than her current boss, Popplewell. The burdening of that message implicates Pickering and Branti , under the approach adopted by the majority of federal courts, and so requires some modicum of justification. Click v. Copeland, 970 F.2d 106 (6th Cir.1992). 36
Under Branti and the position the majority of courts have taken on this issue, Cook’s rival candidacy would justify her dismissal if the effective performance of Cook’s particular deputy clerk position required her to remain politically loyal to and affiliated with Popplewell. In short, some government employees’ positions, by their very nature, involve such confidential relationships or discretionary authority as to justify dismissal without regard to evidence of the impact of the dismissed employee’s conduct or political affiliation on the operation of the office. However, in Caudill v. Rollan, 481 F.3d 900 (6th Cir. 2005), the U.S. Court of Appeals for the Sixth Circuit ruled that deputy county clerks in Kentucky generally perform clerical duties and, thus, do not wield the discretionary authority or provide the sort of confidential advice on matters of policy that would justify their patronage dismissal. As Popplewell has made no attempt to refute or to distinguish Caudill , which appears well-taken on this point, I cannot say that Cook’s dismissal was justified under Branti’s exception for certain employment positions.
Cook’s dismissal would be justified under the Pickering balancing test, however, if her candidacy interfered with the efficient functioning of the County Clerk’s office. In balancing the employee’s interest as citizen in speaking on a matter of public concern and the government’s interest as employer in maintaining an efficient workplace, the Supreme Court has explained that pertinent considerations include “the manner, time, and place of the employee’s expression,” “the context in which the dispute arose,” and “whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.” Rankin v. McPherson, 483 U.S. 378, 388 , 107 S.Ct. 2891 , 97 L.Ed.2d 315 (1987) (citations omitted).
Applying these factors, several courts have held or noted that a subordinate’s candidacy against his or her boss is so apt to be disruptive of a small governmental office that preemptive dismissal or mandatory leave of absence may be justified. Randall v. Scott, 610 F.3d at 714 ; Jantzen v. Hawkins, 188 F.3d at 1258 ; Caruso v. De Luca, 81 F.3d 666, 670-71 (7th Cir. 1996); Bart v. Telford, 677 F.2d 622, 624-25 (7th Cir.1982); Deemer v. Durell, 110 F.Supp.2d 1177, 1179-82 (S.D.Iowa 1999); Warren v. Gaston, 55 F.Supp.2d 1230, 1236 (D.Kan.1999).
In Click v. Copeland, 970 F.2d at 112 -13 and Jordan v. Ector County, 516 F.3d at 299 , on the other hand, the Fifth Circuit *348 held that where the adverse employment action was delayed and there was no evidence that the subordinate’s candidacy had in fact caused disruption in the office, the balance tipped in favor of the employee’s rights. In Murphy v. Cockrell, 505 F.3d 446, 453 (6th Cir.2007), too, the Sixth Circuit held that mere office tension resulting from a subordinate’s rival candidacy and campaign speech, where there was no evidence that the tension had impaired office functions, was not enough to justify the subordinate’s dismissal. Distinguishing Carver , the Court held:
The teaching of [the U.S. Supreme Court decisions in Bullock, Clements and Connick ] leads us to believe that if Murphy supported another candidate in the race for Montgomery County PVA other than Cockrell [her boss], such conduct would be protected by the First Amendment. In fact, if Murphy had simply actively campaigned against Cockrell, but had not become a candidate herself, her speech would be protected. Cockrell argues that the fact that Murphy was a candidate, and supported herself as such, is reason enough under Carver to justify Murphy’s termination. We decline to extend Carver in such a manner. Carver itself distinguished cases in which candidates had been singled out or treated differently based on their political viewpoints or expressions, noting that Carver was dismissed solely based on the fact of his [sic] candidacy, not his [sic] political views. We expressly recognized in Carver that while the mere fact of candidacy was not constitutionally protected, the expression of one’s political belief still fell under the ambit of the First Amendment. Accordingly, we now hold that the fact that Cockrell fired Murphy due to Murphy’s political speech during the course of her campaign — rather than the mere fact of Murphy’s candidacy — is enough to trigger protection under the First Amendment.
505 F.3d at 451 .
While Cook’s fledgling candidacy may have given rise to disruptive tension at the Russell County Clerk’s Office, which comprises two small branches, one in Jamestown and the other in Russell Springs, the record is not sufficiently developed to draw that conclusion. 37 Popplewell maintains, moreover, that she dismissed Cook not because her candidacy disrupted the office, but because of poor work performance. Nevertheless, in Cook’s deposition, she admits that while at work she campaigned, telling County Clerk customers that she was running for Clerk and asking for their support, and discussing her campaign with co-workers. Clearly that is activity itself disruptive of the office’s appropriate functions and virtually certain to engender conflict and distraction. 38 Cook’s dismissal to curtail and to forestall office efficiency problems was justified under Pickering , and thus the trial court’s summary judg *349 ment may be affirmed on that ground. While in my view this is the better approach to the constitutional question the Court takes up, the fact remains that under either approach the result is the same, and we should therefore refrain from choosing.
Two other points warrant some discussion. First, the majority deems itself bound to the “no right to candidacy” position by Com. ex rel. Stumbo v. Crutchfield, 157 S.W.3d 621 (Ky.2005), in which this Court addressed an equal protection challenge to Kentucky Revised Statute (KRS) 160.180, an anti-nepotism statute disqualifying as candidates for seats on the board of education persons with relatives employed by the school district. At the outset of its analysis the Crutchfield Court discussed the appropriate level of judicial scrutiny:
The initial inquiry is to determine what standard of scrutiny applies when testing the constitutionality of KRS 160.180.... Governmental classifications that do not target suspect classes or groups or fundamental interests are subject only to rational basis review.... The challenged statute does not affect a suspect class.... It does not inflict injury to Appellee’s right to candidacy, because no such constitutional status exists .... Therefore, a rational basis test is the appropriate constitutional standard.
157 S.W.3d at 623-24 (citations omitted). Clearly, all the Crutchfield Court needed to say, and in my view all it intended to say, was that candidacy is not a fundamental right necessitating strict scrutiny. The United States Supreme Court has said as much. To the extent that the Crutchfield Court meant to say more than that, the opinion is dicta and should not be thought to apply to this very different set of facts. There is reason to believe, however, that the Court did not niean to say more. The case the Crutchfield Court cited for its “no such constitutional status exists” statement is Bullock v. Carter, 405 U.S. 134 , 92 S.Ct. 849 , 31 L.Ed.2d 92 (1972), in which the Supreme Court addressed an equal protection challenge to certain Texas filing fee statutes. Addressing the appropriate standard of review, the Court observed that
[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_[T]he Texas system creates barriers to candidate access to the primary ballot, thereby tending to limit the field of candidates from which voters might choose. The existence of such barriers does not of itself compel close scrutiny.
405 U.S. at 142-43 , 92 S.Ct. 849 . With all due respect, my colleagues in the majority cannot seriously claim to find in that passage any hint, much less an unambiguous declaration, that candidacy enjoys no First Amendment protection. The Crutchfield Court could not either, and I would not attribute to it any such intent.
Finally, the majority declares itself unwilling to recognize a right as seemingly vague as a right to candidacy. In short, if there is such a right, why has no one been able to say what it is? What the majority takes for uncertainty and vagueness, however, is rather the caution with which courts appropriately proceed when sailing in uncharted constitutional waters. As noted above, constitutional rulings are to be avoided if possible, and a corollary of that principle is that if a ruling is required it should be as narrow as possible. This is a caution, moreover, insisted upon by the Supreme Court. As noted above, for example, in Clements v. Fashing the Court *350 rejected the idea of “litmus paper tests for constitutional rights, and explained instead that
[djecision in this area of constitutional adjudication [restrictions on candidacy] is a matter of degree, and involves a consideration of the facts and circumstances behind the law, the interests the State seeks to protect by placing restrictions on candidacy, and the nature of the interests of those who may be burdened by the restrictions.
457 U.S. at 963 , 102 S.Ct. 2836 (citations omitted). This same insistence on careful, case-by-case balancing of interests recurs throughout the Pickering and Branti line of cases. Although this approach does not result, at least not in the short term, in the sort of bright-line rules the majority desires, it does allow the law to evolve in a thoughtful and responsible manner. As the cases discussed above show, this approach does not rely on absolutist assertions or absolutist denials of candidacy rights. It recognizes rather, as common sense suggests, that our citizens have a right, protected by the First Amendment, to run for office. It is a right stronger in some circumstances than others and a right subject to numerous countervailing interests. It is a right nonetheless, and so at the very least, is not to be denied arbitrarily. A compelling example of arbitrariness is Randall v. Scott, wherein an assistant prosecutor was dismissed solely because he was running for county commissioner, a position his boss’s spouse also intended to seek. Clearly, this dismissal was based only on the employer’s personal interest, an interest that would not justify encroachment on the right to candidacy under a Pickering/Branti analysis. Under the Court’s ruling today, however, a similar employee in Kentucky would have no redress in our state courts because the majority has concluded that a right to candidacy is simply not protected by the First Amendment.
CONCLUSION
In sum, because Cook has not adequately alleged an “official capacity” cause of action, and because her work-place campaigning would not be protected under any reading of the First Amendment, I would affirm the summary judgment dismissing her suit on these grounds and leave for another day any further delineation of candidacy’s First Amendment status. The Court having reached that question, however, I do not join the majority’s conclusion that “candidacy per se ” has no First Amendment implications. The majority disregards a growing body of authority under the Supreme Court’s Pickering and Branti decisions and adopts a minority view that has attracted few adherents since it was first articulated twenty years ago. Respectfully, therefore, I concur in the result the Court reaches, but not in its opinion.
MINTON, C.J., and NOBLE, J., join.
. Pickering involved a school teacher who was dismissed after he expressed his opinion on school funding issues in a letter to the newspaper. Justice Marshall noted that "the problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 391 U.S. at 568 , 88 S.Ct. 1731 . In Brand, the Court stated "[i]f an employee's private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and efficiency.” 445 U.S. at 517 , 100 S.Ct. 1287 . The Brand Court concluded it would "undermine, rather than promote, the effective performance of an assistant public defender’s office to make his tenure dependent on his allegiance to the dominant political party.” Id. at 519— 20, 100 S.Ct. 1287 . In so ruling, the Court noted that "the primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State.” Id. The Court further observed: "This is in contrast to the broader public responsibilities of an official such as a prosecutor. We express no opinion as to whether the deputy of such an official could be dismissed on grounds of political party affiliation or loyalty." 445 U.S. at 519 n. 13, 100 S.Ct. 1287 (citation omitted).
. A dismissal on these grounds is often referred to as a "patronage dismissal.”
. The majority disregards this portion of the Supreme Court's opinion and its apparent recognition of "First Amendment interests in candidacy,” and instead purports to find the Court’s intent to deny candidacy First Amendment protection from the sentence, "Far from recognizing candidacy as a 'fundamental right,' we have held that the existence of *344 barriers to a candidate’s access to the ballot ‘does not of itself compel close scrutiny.' ” 457 U.S. at 963 , 102 S.Ct. 2836 . Since "no right” is about as far from "fundamental right” as you can get, reasons the majority, Justice Rehnquist’s use of the phrase "far from” should be understood as implying that candidacy enjoys no First Amendment protection. Aside from the fact that the precedent to which Justice Rehnquist refers says no such thing and so belies the majority’s inference, the real contrast being made is that between strict scrutiny, on the one hand, the level of review applied to legislation burdening fundamental rights, and, on the other hand, a less exacting, more deferential level of review applied to legislation that does not burden fundamental rights. In rejecting the appellants’ invocation of strict scrutiny, Justice Rehnquist does indeed point to strict scrutiny’s "far from” opposite — a sort of rational basis review- — as all that, under the facts presented, precedent required. The Supreme Court’s application of a less exacting level review does not mean, however, that the appellant-candidates had no rights, but rather that burdens on those rights would be upheld if they could be deemed reasonably to further legitimate state interests.
Even less convincing is the majority's foray into constitutional history. Suffice it to say that nowhere in United States Civil Service Commission v. National Association of Letter Carriers AFU-CIO, 413 U.S. 548 , 93 S.Ct. 2880 , 37 L.Ed.2d 796 (1973), is there any suggestion that candidacy is on a different constitutional footing from any of the other partisan political activities, such as fund raising and campaigning on behalf of others, clearly protected by the First Amendment but nevertheless subject to the Hatch Act's restrictions.
. Significantly the Eleventh Circuit stated: "We agree that if Randall decided to run against Scott [his boss] for Clayton County District Attorney, Scott would have good legal reason to discharge him due to the state’s interest in office loyalty.” 610 F.3d at 714 .
. The Carver opinion emphasizes repeatedly that Carver was the "sole employee” and she was trying to take her boss’s job.
. As the Court of Appeals noted in this case, several Courts, this one included, have applied rational basis review to legislative ballot restrictions on the ground that candidacy is not a fundamental right entailing strict scrutiny. See, e.g., Commonwealth ex rel. Stumbo v. Crutchfield, 157 S.W.3d 621 (Ky.2005). The absence of a fundamental right, however, does not mean that there is no right at all.
. Under Branti , public employees who are in positions not involving “confidence” or poli-cymaking cannot be dismissed simply for having supported the "wrong” candidate. The majority position suggests an obvious query: why should that rule not also apply when the “wrong" candidate happens to be the employee herself? Murphy v. Cockrell, 505 F.3d 446 (6th Cir.2007).
. The record does reflect that about two weeks before Cook was terminated she was transferred from the Russell Springs office to the County Clerk’s main office in Jamestown where Popplewell worked daily.
. Campaigning in a government office through conversations with the public or coworkers is indisputably disruptive. See, e.g., Jordan v. Ector County, wherein the Fifth Circuit, engaging in Pickering balancing, stated: "We need not pause long on the balancing, for there is no record evidence that Jordan’s political activities caused disruptions that would justify termination; Defendants concede the evidence of disruption is "scant.’’ Jordan’s political activities constitute core First Amendment activity, and there is no evidence that any campaigning or electioneering occurred at work or on County time. Morgan testified that Jordan was helpful, honest, hard working, and capable. 516 F.3d at 299 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5112812. Public record. Not legal advice.