Sarah Jane Underwood v. Rita Harkins

698 F.3d 1335, 34 I.E.R. Cas. (BNA) 769, 2012 U.S. App. LEXIS 21788, 2012 WL 4935697
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 18, 2012
Docket11-13117
StatusPublished
Cited by16 cases

This text of 698 F.3d 1335 (Sarah Jane Underwood v. Rita Harkins) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sarah Jane Underwood v. Rita Harkins, 698 F.3d 1335, 34 I.E.R. Cas. (BNA) 769, 2012 U.S. App. LEXIS 21788, 2012 WL 4935697 (11th Cir. 2012).

Opinions

JORDAN, Circuit Judge:

Following the 1860 election, President Abraham Lincoln chose a cabinet “comprised of enemies and opponents,” including three men who had been his “chief rivals for the Republican nomination,” because they “ ‘were the strongest men in the party’ ” and he “ ‘had no right to deprive the country of their services.’ ” Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln 319 (2005). When she was elected in 2008 as superior court clerk of Lumpkin County, Georgia, Rita Harkins did not emulate President Lincoln; in her first official act as clerk, Ms. Harkins dismissed her coworker and former political rival, Sarah Jane Underwood, whom she had defeated in the Republican primary.

The issue we address is whether this firing violated Ms. Underwood’s First Amendment rights. In light of our precedent, we conclude, as did the district court, that it did not. ■

I

Ms. Underwood sued Ms. Harkins under 42 U.S.C. § 1983, alleging that her termination was unconstitutional under the First Amendment because it was based on her candidacy. The district court granted summary judgment in favor of Ms. Harkins, so under Rule 56 we look at the evidence in the light most favorable to Ms. Underwood. See, e.g., Curves, LLC v. Spalding County, Ga., 685 F.3d 1284, 1289 (11th Cir.2012).

A

Under Georgia law, a superior court clerk like Ms. Harkins has a number of statutory responsibilities and duties: to keep and run the clerk’s office; to attend the needs of the court; to issue and sign every paper under authority of the court, including orders to show cause; to keep automated civil and criminal case management systems, as well a docket or file for recording all matters and documents evidencing title to real property; to keep all papers of the clerk’s office with care and security; to keep all publications of federal and state law furnished by the state; to procure a substantial seal of office; to make out and deliver a correct transcript and/or any minutes, records, or files in the clerk’s office, except for sealed matters; to [1337]*1337make notation on all conveyances of real or personal property, including liens, of the date and time they were recorded; to attest deeds and other written instruments for registration; to administer oaths; to submit certain financing statements; to remit a portions of certain fees collected; to participate in the' state-wide uniform automated information system; to participate in an authorized clerk’s network for the transmission and retrieval of electronic information; to file and transmit all civil case filings and disposition forms, as well as certain data; to participate in agreements, contracts, and networks necessary for the performance of duties required by law; and to perform such other duties as required by law or as necessarily applicable to the office of clerk of superior court. See Ga.Code Ann. § 15 — 6—61(a)(1)—(21) (2012). A superior court clerk must execute a bond of $150,000 and is “liable to rule” if she does not “faithfully account” for any money received. See Ga.Code Ann. §§ 15-6-59(a), 15-6-83 (2012).

Georgia law gives each superior court clerk the power to appoint one or more deputies, and to require from them a “bond with good security.” See Ga.Code Ann. § 15 — 6—59(b) (2012). It also provides that the “[pjowers and duties of deputy clerks shall be the same as those of [superior court] clerks.” Ga.Code Ann. § 15-6-59(b) (2012). Thus, a deputy clerk like Ms. Underwood is statutorily authorized to carry out the same tasks as the clerk, who is her superior. See Hendrick v. State, 257 Ga. 17, 354 S.E.2d 433, 434 (1987) (“By statute, the deputy clerk has the same power and duties as those of the clerk of the court.”); Green v. State, 49 Ga.App. 252, 175 S.E. 26, 27-28 (1934) (deputy clerks are empowered to take affidavits upon which warrants may be issued); Led-better v. State, 2 Ga.App. 631, 58 S.E. 1106, 1107 (1907) (deputy clerks can receive indictments).

In Lumpkin County, the position of superior court deputy clerk is not protected by the civil service system. That means that a deputy clerk is an at-will employee subject to discharge by the clerk. See Thomas v. Lee, 286 Ga. 860, 691 S.E.2d 845, 847 (2010) (a public employee who is not covered under the civil service system “lacks a protected property interest in her employment,” and can “be terminated without cause”).

B

In 2004, while Edward Tucker served as the elected superior court clerk for Lump-kin County, Ms. Underwood became one of the two deputy clerks. By 2009, she and Ms. Harkins were two of the three deputy clerks working under Mr. Tucker.

As a deputy clerk, Ms. Underwood was the administrative assistant to Mr. Tucker, helping him create and maintain confidential personnel records and files — which Mr. Tucker kept under lock and key — and handling “any things he needed throughout the day as a secretary would do.” Mr. Tucker was a very “hands-on” clerk who was “seldom out of the office,” but if he was not available Ms. Underwood could do things like swear in notaries. Ms. Underwood did not set policies for the clerk’s office. Nor did she perform duties statutorily assigned to Mr. Tucker.

Ms. Underwood also worked in the adoption and juvenile divisions of the clerk’s office, and in 2006 she began handling accounting duties. As the accountant, Ms. Underwood paid jurors, handled the accounts receivable and accounts payable, received bonds and funds to be [1338]*1338placed in escrow, maintained the office’s general ledger, reconciled nine bank accounts, and assisted Mr. Tucker (who gave her general directions) with the budget. Ms. Underwood “reported mainly to Mr. Tucker.”

Ms. Underwood and Ms. Harkins were cordial to each other, but they generally did not socialize. Their duties as deputy clerks did not overlap, as Ms. Harkins was in charge of the criminal court division, and the two therefore had little interaction at work.

C

In 2008, Mr. Tucker, who was a Republican, announced that he was not going to seek re-election as superior court clerk, a position he had held since 1973. Ms. Harkins and Ms. Underwood each decided to seek the Republican nomination for clerk, and they ran against each other, and two other candidates, in the Republican primary. This caused “some” tension in the clerk’s office. One employee in the nine-person clerk’s office publicly supported Ms. Underwood, while another employee publicly supported Ms. Harkins.

None of the candidates in the Republican primary for clerk won a majority of the vote; Ms. Underwood received one of the two lowest vote totals and was eliminated, while Ms. Harkins faced off against another candidate in a runoff she ended up winning. When no Democrat qualified to run in the election, Ms. Harkins became the superior court clerk by having won the Republican primary.

The primary contest in which Ms. Underwood and Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
698 F.3d 1335, 34 I.E.R. Cas. (BNA) 769, 2012 U.S. App. LEXIS 21788, 2012 WL 4935697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sarah-jane-underwood-v-rita-harkins-ca11-2012.