United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, District Judge.
After she was fired by the presiding judge of Missouri's Second Judicial Circuit,  former Adair County deputy circuit clerk Susan Gall brought this Section 1983 suit alleging that her procedural due process rights were violated. Gall argues that only the Adair County Circuit Clerk - and not the presiding judge - had authority to fire her. She names as defendants Judge Russell Steele, the former presiding judge who made the decision, and his successor, Judge Kristie Swaim. Judges Steele and Swaim have moved to dismiss. This case raises a controlling question of Missouri law that is unclear, and the decision of the issue by the state courts could avoid the need for a decision on federal constitutional grounds. Pullman abstention therefore applies. Rather than dismiss the action, however, I will stay it to give the parties the opportunity to seek a determination of the controlling Missouri issue by the Missouri courts.
Adair County Circuit Clerk Linda Decker hired Gall as a deputy circuit clerk in April 2005. Years later, on August 20, 2013, Judge Steele, who was then the Presiding Judge of the Second Judicial Circuit Court, served Gall with a letter describing some alleged incidents with her work and finding her conduct in violation of two Missouri Supreme Court Operating Rules. In the letter, Steele purported to suspend Gall without pay until the following week and notified her of his intent to terminate her employment permanently. Steele enclosed a copy of the Operating Rule governing termination of employment and pointed out that the Rule permitted Gall to request a pre-termination hearing.
Gall did so, but she directed her hearing request to Circuit Clerk Decker, whom Gall contends was the sole appointing authority permitted under state law to terminate her employment. On August 28, 2013, the day after Gall's employment ended (according to Steele's letter), Decker conducted the requested hearing.
A week later, on September 4, 2013, Decker e-mailed Gall, summarizing her findings from the hearing. Decker first affirmed that Gall had properly requested a pre-termination hearing in accordance with the governing Supreme Court Operating Rule. Decker concluded that Gall had not violated the Rules that Steele had cited as the basis for her termination. Decker reversed Steele's decision, granted back pay to Gall, and ordered her to report for work the following week. Decker wrote, "According to Missouri Law - neither Judge Steele or his designee, Matt Holt[, ] had the authority to terminate or designate your duties or assignments."
The next day, Steele wrote another letter to Gall, countermanding Decker's decision. He informed Gall that it was he and not Decker who had authority to terminate her employment. Steele advised Gall that the pre-termination hearing conducted by Decker was invalid, and he offered her another opportunity to request a hearing from him. Eventually, when Gall did not request a hearing, Steele issued a final dismissal letter formally terminating her employment.
The parties appear to agree that Gall had a protected property interest in her public employment. The crux of their dispute is whether Steele had authority to terminate Gall's employment.
Gall contends that only Decker had such authority. She bases her assertion on Mo. Rev. Stat. § 483.245, which provides in relevant part that "[t]he circuit clerk, or person exercising the authority of the circuit clerk pursuant to county charter, shall appoint all deputy circuit clerks" and "prescribe and assign the duties" of those clerks. The statute also gives the circuit clerk authority to "remove from office any deputy circuit clerk whom he appoints."
Gall contends that-in accordance with this statute-Presiding Circuit Judge Steele, Associate Circuit Judge Swaim, and Circuit Clerk Decker entered a March 2008 agreement giving Decker "sole authority" to terminate deputy clerks like her. This agreement, called Agreement for the Consolidation of the Clerical Functions of the Circuit Court of Adair County, Missouri, was intended (among other things) to concentrate supervisory authority for both deputy circuit clerks and another type of employee, deputy division clerks, in a single person. The 2008 Consolidation Agreement was proper, says Gall, because it also complied with Missouri Supreme Court Rule 50.01, which gives state courts the power to "make rules governing the administration of judicial business if the rules are not inconsistent with the rules of this Court, the Constitution or statutory law in force." Gall contends that this agreement remained in effect until April 2014 (after her termination), when a majority of the judges of the Second Judicial Circuit amended it in order to designate Judge Swaim as the appointing authority.
Defendant Steele's Position 
Steele argues that this 2008 agreement was properly amended in 2013, before the incidents that gave rise to this cause of action. He contends that the 2013 amendment vested him with sole supervisory authority.
To explain why the 2013 amendment was valid, Steele first points to a state constitutional provision giving the Supreme Court of Missouri the authority to control and supervise its courts, including the Adair County Circuit Court. See Mo. Const. art. V, § 4.1. Pursuant to that power, the Missouri Supreme Court ordered in 2009 that the supervision of deputy circuit clerks and division clerks be consolidated under a single appointing authority for each circuit court. It recognized that certain courts had already voluntarily consolidated. To oversee the consolidation, the Supreme Court assigned ...