Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—8th Cir.: County clerk failed to revive Sec. 1983 lawsuit against her political revival and the judge that was her spouse, (Feb 5, 2025)

By Marjorie Johnson, J.D.

The judge’s inducement of a criminal contempt prosecution against the circuit clerk, which was eventually dismissed, was not a clearly established adverse employment action under the First Amendment.

An elected county clerk failed to convince the Eighth Circuit to revive her Section 1983 lawsuit alleging her political rival and the judge to whom she was married violated her First Amendment rights by discriminating and retaliating against her based on her political affiliation. Affirming dismissal of her claims, the Eighth Circuit found that the defendants were entitled to qualified immunity since it was not clearly established that the judge’s inducement of a criminal contempt prosecution against the clerk constituted an adverse employment action, and the defendants’ remaining conduct had little or no effect on the terms or conditions of her employment. Her substantive due process claims also failed since she did not allege a serious deprivation of any property or liberty interest (Grooms v. Privette, No. 24-2019 (8th Cir. Feb. 4, 2025)).

Political retribution. The plaintiff (a Republican) defeated her rival (a Democrat) in an election for the office of the county circuit clerk. The rival had been serving the county as a deputy clerk and retained her job under the plaintiff. Three years later, the rival married a Republican presiding judge for a judicial circuit that encompassed the county.

Work-related conduct. The plaintiff claimed the couple took certain uncooperative actions against her at work. The rival allegedly disobeyed her instruction to train another deputy clerk, and the judge rejected her request to replace the rival as his courtroom clerk for a civil case despite the recommendation by the Office of State Courts Administrator (OSCA).

In the following months, the rival resigned and announced she would run for circuit clerk, this time as a Republican. Around the same time, the judge ordered the plaintiff to prepare a spreadsheet listing over three years’ worth of criminal cases and identifying the completion date for any bill of costs in each case, the date each bill of costs was properly certified and filed, and the expected amount of the costs the state would reimburse. Working with OSCA, she prepared the requested spreadsheet, but the judge rejected it and ordered her to prepare a new spreadsheet two more times, each time rejecting her attempts to comply.

Prosecuted for criminal contempt. The judge then appointed a prosecutor to prosecute the plaintiff for criminal contempt. She unsuccessfully moved to dismiss the proceedings and to assign another judge, and the appeals court declined her bid to dismiss the case. However, the Missouri Supreme Court issued a writ of prohibition requiring the dismissal of the contempt motion, concluding that her conduct did not threaten Missouri courts’ functioning as judicial tribunals.

Reelected as circuit clerk. Meanwhile, she won reelection after her rival dropped out of the race. Unhappy about her treatment at work and the contempt proceedings, which cost her over $39,000 in litigation expenses, she brought this lawsuit.

First Amendment claim. The Eighth Circuit first found that the plaintiff’s First Amendment claims failed since none of the defendants’ actions rose to the level of an adverse employment action under clearly established First Amendment law, and therefore they enjoyed qualified immunity. While she claimed they discriminated and retaliated against her because she was a Republican, she failed to identify any actions they took against her that qualified as discriminatory or retaliatory under clearly established law since it was “at least unclear” whether any of their actions changed the terms or conditions of her employment.

Prosecution not clearly an adverse employment action. Though she argued that the defendants did so by inducing a prosecutor to pursue a baseless criminal contempt prosecution against her, the prosecution “had no obvious effect on her employment,” as she “apparently enjoyed office without interruption and without any change in basic terms or conditions of employment like ‘pay or benefits’ or ‘job duties or responsibilities,’” explained the Eighth Circuit. Instead, the Missouri Supreme Court ordered the prosecution dismissed, and she won reelection as circuit clerk. “Though she may still bristle at the public—and, in her view, false—allegations against her, we are wary of treating one public official’s allegations against another public official as discrimination or retaliation without more.”

Other work-related conduct insufficient. The defendants’ alleged work-related conduct also had little or no effect on the terms or conditions of her employment. Her rival’s alleged refusal to train a deputy clerk “was an isolated act of insubordination,” and managing that occurrence was the plaintiff’s job as her supervisor. The judge’s refusal to let her replace her rival as courtroom clerk for a single civil case also did not materially change her employment terms or conditions. Finally, the additional work she had to do to prepare spreadsheets requested by the judge also did not constitute adverse employment actions. She conceded that she had a duty to comply with the judge’s orders to process bills of costs and objected only to the judge’s attempt to control the “detailed manner” in which she did so. But there was no indication that documenting her compliance was a duty she would have avoided but for the judge’s request for spreadsheets.

Substantive due process. Dismissal of the plaintiff’s substantive due process claim was also proper since she failed to plausibly allege “a serious deprivation of an interest protected by the Fourteenth Amendment’s Due Process Clause.” First, her argument that the defendants deprived her of a property or liberty interest in her first and second terms as circuit clerk failed since she “enjoyed the entirety of the first term, won reelection, and has served the second term without interruption.” Moreover, any alleged interference with her property or liberty interest in performing her duties was “less than conscience-shocking.” While the judge’s conduct in engineering her contempt prosecution “was not so ordinary,” there was no suggestion it affected any interest in performing her duties, particularly since the Missouri Supreme Court ordered the prosecution dismissed. The Eighth Circuit was also “unconvinced that engineering the prosecution violated her substantive due process rights by tainting her reputation.”

The case is No. 24-2019.

Judge: Arnold, M.

Attorneys: David M. Duree (David M. Duree & Associates) for Betty Grooms. Joseph Thomas Neely (Behr, McCarter & Potter) for Steven A. Privette.

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