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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
LINDA F. CARTER, SARA COALSON, AMY DAVIS and DOROTHY M. HYATT,
Plaintiffs, v. PAM MARION, in her official capacity of Clerk of
Superior Court of Surry County, Defendant
Filed: 5 June 2007
1. Trials--mistrial_subsequent grant of summary judgment
The trial court did not err by concluding that defendant's motion for summary judgment
was properly before it in a 42 U.S.C. § 1983 and state constitutional claims case arising out of
defendant clerk of court's decision to not reappoint plaintiffs to their former positions as deputy
clerks even though plaintiffs contend defendant's motion presented the same legal issues
previously determined by another trial judge in ruling upon defendant's motion for directed
verdict at the close of the evidence at trial, because: (1) where the jury is unable to agree on a
verdict and the court orders a mistrial and continues the case, the case remains on the civil docket
for trial de novo and is unaffected by rulings made during the trial; and (2) the trial court ordered
a mistrial, and thus the case subsequent to the mistrial is unaffected by the rulings made during
the trial, including the trial court's denial of defendant's motion for a directed verdict.
2. Civil Rights; Clerks of Court--§ 1983 claim-_state--deputy clerk position--political
affiliation appropriate requirement
The trial court did not err by granting summary judgment in favor of defendant clerk of
court in a 42 U.S.C. § 1983 and state constitutional claims case arising out of defendant's
decision to not reappoint plaintiffs to their former positions as deputy clerks, because political
affiliation is an appropriate requirement for deputy clerks of superior court when: (1) N.C.G.S. §
7A-102(a) provides that deputy clerks serve at the pleasure of the elected clerk and are appointed
by the clerk; (2) the clerk is responsible for the acts of his or her deputies, and N.C.G.S. § 7A-
107 requires the clerk and deputy clerks to be bonded; (3) N.C.G.S. § 7A-102(b) provides that
with the consent of the clerk and the presiding judge, deputy clerks are authorized to perform all
the duties and functions of the office of the clerk in another county in any proceeding that has
been transferred to that county from the county in which the deputy clerk is employed; and (4)
deputy clerks serve as the public face of the clerk's office, carry out the clerk's policies, and
foster public confidence in the office.
Appeal by plaintiffs from order entered 22 March 2006 by Judge
Richard L. Doughton in Surry County Superior Court. Heard in the
Court of Appeals 21 March 2007.
David C. Pishko for plaintiff appellants.
Attorney General Roy Cooper, by Special Deputy Attorney
General Grady L. Balentine, Jr., for defendant appellee.
Plaintiffs appeal from an order granting defendant's motion
for summary judgment. We affirm.
The plaintiffs, Linda F. Carter, Sara Coalson, Amy Davis and
Dorothy M. Hyatt, are former deputy clerks in the Office of the
Clerk of Superior Court of Surry County. All plaintiffs were
initially employed by Pat Coe Todd, who served as Clerk of Superior
Court for twelve years until 2002, but decided not to run for re-
election in the fall of 2002.
Defendant, Pam Marion (defendant), was a candidate for the
office of clerk in 2002. Initially, she faced another Assistant
Clerk, Patricia Wagoner, in the Democratic primary. Defendant won
the primary and proceeded to the general election, which she won,
in November 2002. Defendant was scheduled to take office on 2
December 2002. On 27 November 2002, she delivered letters to each
of the plaintiffs informing them that their employment as deputy
clerks would be terminated as of 2 December 2002, without
Plaintiffs brought this action against the Clerk of Superior
Court, Pam Marion, in both her official and individual capacity on
29 August 2003. Their claims arose out of defendant's decisions to
not reappoint them to their former positions as deputy clerks.
Plaintiffs alleged defendant infringed upon their rights under the
First Amendment to the United States Constitution in violation of
42 U.S.C. § 1983; that defendant violated their rights to free
speech under the North Carolina Constitution; and that defendantdischarged them in violation of public policy. Plaintiffs sought
declaratory relief, compensatory and punitive damages, and
reinstatement to their former positions, together with back pay and
restoration of benefits.
Defendant moved to dismiss the claims against her pursuant to
Rule 12(b)(1), (2), and (6) of the North Carolina Rules of Civil
Procedure. The trial court dismissed plaintiffs § 1983 claims
against defendant in her individual capacity, their § 1983 monetary
claims against her in her official capacity, their state
constitutional claims against her in her individual capacity, and
their claims for wrongful discharge in violation of public policy.
Plaintiffs' § 1983 claims for injunctive relief against defendant
in her official capacity and their state constitutional claims
against her in her official capacity were left standing.
Plaintiffs did not appeal this order.
This matter came on for trial by jury during a 12 December
2005 Special Civil Session of the Superior Court for Surry County.
At the close of plaintiffs' evidence, and again at the close of all
the evidence, defendant moved for a directed verdict. Both motions
were denied. The case went to the jury, and the jury informed the
court it was deadlocked and further deliberations would not be
productive. Therefore, a mistrial was declared on 20 December
Subsequently, defendant filed a motion for summary judgment on
3 March 2006. By order dated 22 March 2006, the trial court
granted defendant's motion for summary judgment and dismissed thecase. Plaintiffs appeal the trial court's granting of summary
 As a threshold issue, plaintiffs contend that defendant's
motion for summary judgment was not properly before the trial
court. We disagree.
Plaintiffs' argument is that defendant's motion for summary
judgment presented the same legal issues previously determined by
Judge Trawick in ruling upon defendant's motion for directed
verdict at the close of the evidence at trial. Plaintiffs rely on
Huffaker v. Holley
, 111 N.C. App. 914, 433 S.E.2d 474 (1993), which
stated that North Carolina adheres to the rule that one superior
court judge may not overrule the order of another superior court
judge previously made in the same case on the same issue. Id.
915, 433 S.E.2d at 475.
Although this statement in Huffaker
is good law, there is
other precedent which is more applicable to the instant case. Our
Supreme Court has stated that where the jury is unable to agree on
a verdict and the court orders a mistrial and continues the case,
the case remains on the civil docket for trial de novo
unaffected by rulings made during the trial. Gillikin v. Mason
256 N.C. 533, 534, 124 S.E.2d 541, 542 (1962). Here, the trial
court ordered a mistrial, and thus, the case subsequent to the
mistrial is unaffected by the rulings made during the trial,
including the trial court's denial of defendant's motion for a
directed verdict. Accordingly, we disagree with plaintiffs.
 Plaintiffs contend the trial court erred in granting
defendant's motion for summary judgment as to their claims that
their termination (1) violated 42 U.S.C. § 1983 by depriving them
of their rights as guaranteed by the United States Constitution and
(2) violated the North Carolina Constitution. We disagree.
Granting summary judgment is appropriate only if the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that any party is
entitled to a judgment as a matter of law. N.C. Gen. Stat.
§ 1A-1, Rule 56(c) (2005). There is no genuine issue of material
fact where a party demonstrates that the claimant cannot prove the
existence of an essential element of his claim or cannot surmount
an affirmative defense which would bar the claim. Harrison v.
City of Sanford
, 177 N.C. App. 116, 118, 627 S.E.2d 672, 675, disc.
, 361 N.C. 166, 639 S.E.2d 649 (2006). On appeal from
a grant of summary judgment, this Court reviews the trial court's
decision de novo
. Falk Integrated Tech., Inc. v. Stack
, 132 N.C.
App. 807, 809, 513 S.E.2d 572, 573-74 (1999). A moving party has
the burden of establishing the lack of any triable issue of fact
and its supporting materials are carefully scrutinized, with all
inferences resolved against it. Kidd v. Early
, 289 N.C. 343, 352,
222 S.E.2d 392, 399 (1976).
With regard to the United States Constitution, the United
States Supreme Court, through Elrod v. Burns
, 427 U.S. 347, 49 L.Ed. 2d 547 (1976) and Branti v. Finkel
, 445 U.S. 507, 63 L. Ed. 2d
574 (1980), decided that the First Amendment forbids government
officials to discharge or threaten to discharge public employees
solely for not being supporters of the political party in power,
unless party affiliation is an appropriate requirement for the
position involved. Rutan v. Republican Party
, 497 U.S. 62, 64,
111 L. Ed. 2d 52, 60, reh'g denied
, 497 U.S. 1050, 111 L. Ed. 2d
828 (1990) (held that it is unconstitutional to base certain
employment decisions, involving low-level public employees, on
party affiliation and support).
In Jenkins v. Medford
, 119 F.3d 1156 (4th Cir. 1997), cert.
, 522 U.S. 1090, 139 L. Ed. 2d 869 (1998), the Fourth Circuit
United States Court of Appeals decided an analogous issue. In
, the court held that North Carolina deputy sheriffs may be
lawfully terminated for political reasons under the Elrod-Branti
exception to prohibited political terminations. Id.
at 1164. The
holding was qualified in that the court limited dismissals to those
deputies actually sworn to engage in law enforcement activities on
behalf of the sheriff. Id.
at 1165. The court stated that the
legislature has made deputy sheriffs at-will employees who 'serve
at the pleasure of the appointing officer.' Id.
at 1164 (citation
omitted). The court also noted that deputy sheriffs (1) implement
the sheriff's policies; (2) are likely part of the sheriff's core
group of advisors; (3) exercise significant discretion; (4) foster
public confidence in law enforcement; (5) are expected to provide
the sheriff with truthful and accurate information; and (6) aregeneral agents of the sheriff, and the sheriff is civilly liable
for the acts of his deputy. Id.
Subsequent to the Jenkins
decision, the Fourth Circuit United
States Court of Appeals decided Knight v. Vernon
, 214 F.3d 544 (4th
Cir. 2000). In Knight
, the court held that a jailor's political
allegiance to the sheriff was not an appropriate requirement for
the performance of her job as jailer. Id.
at 550. In so holding,
the court analyzed the specific job duties of the jailor and noted
that they are routine and limited in comparison to those of a
deputy sheriff. Id.
In addition, the court stressed that a
deputy sheriff is a sworn officer who is the alter ego of the
sheriff, whereas, the authority of a jailor is much more
Further, the court noted that the jailor was
not a confidant of the sheriff, was not involved in communicating
the sheriff's policies or positions to the public, and was not
entrusted with broad discretion. Id.
We determine that political affiliation is an appropriate
requirement for deputy clerks of superior court. The duties of
deputy clerks as described in the North Carolina General Statutes
illustrate the many possible job assignments a deputy clerk may be
given. First, like the deputy sheriff, deputy clerks serve at the
pleasure of the elected clerk and are appointed by the clerk. N.C.
Gen. Stat. § 7A-102(a) (2005). They also take an oath of office
prescribed by clerks of superior court. Id.
[a] deputy clerk is authorized to certify the
existence and correctness of any record in the
clerk's office, to take the proofs andexaminations of the witnesses touching the
execution of a will as required by G.S. 31-17,
and to perform any other ministerial act which
the clerk may be authorized and empowered to
do, in his own name and without reciting the
name of his principal.
N.C. Gen. Stat. § 7A-102(b). Further, the clerk is responsible
for the acts of his deputies, id.
, and the North Carolina General
Statutes require the clerk and deputy clerks to be bonded. N.C.
Gen. Stat. § 7A-107 (2005). Also, [w]ith the consent of the clerk
. . . [and] the presiding judge . . . , [a] deputy clerk is
authorized to perform all the duties and functions of the office of
the clerk . . . in another county in any proceeding . . . that has
been transferred to that county from the county in which the . . .
deputy clerk is employed. N.C. Gen. Stat. § 7A-102(b).
The particular job duties of plaintiffs are also telling.
Plaintiffs serve as the public face of the clerk's office and each
plaintiff testified to that effect: Hyatt answered questions at the
counter in the clerk's office and fulfilled information requests,
Carter handled the public, Davis assisted the public, and Coalson
aided the public in filing their small claims cases and scheduled
small claims hearings. In so doing, plaintiffs carry out the
clerk's policies and foster public confidence in the office.
Accordingly, the trial court's award of summary judgment was
proper. We disagree with plaintiffs and determine that political
affiliation is an appropriate employment requirement for
plaintiffs. We decline to hold that plaintiffs have broader rights
under the North Carolina Constitution as compared to the UnitedStates Constitution, especially when the legislature explicitly
stated by statute that deputy clerks serve at the pleasure of the
Judges CALABRIA and STROUD concur.
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