701 F.3d 231
7th Cir.2012Background
- Embry worked for Calumet City for over a decade, rising to commissioner of Streets and Alleys in 2007.
- The commissioner oversaw public works, budget, staffing, and policy discussions with the mayor and other department heads.
- During the 2009 election, Embry supported the mayor's United to Serve You slate and declined to switch allegiance.
- After a department merger, Embry briefly led the new combined Department of Streets, Alleys, Water, and Sewer; his appointment was not ratified by the council.
- The mayor later nominated another candidate; Embry filed suit under 42 U.S.C. § 1983 seeking relief for alleged political firing.
- The district court granted summary judgment, holding Embry held a policymaking position under Elrod-Branti, justifying dismissal for political reasons.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Embry held a policymaking position under Elrod-Branti | Embry argues his duties gave policy input | Defendants contend the position required political allegiance | Yes, Embry was policymaking and dismissible for politics. |
| Whether Elrod-Branti applies to justify dismissal for political affiliation | Embry asserts protected speech and affiliation not mere loyalty | Defendant asserts patronage exception applies to policymaking roles | Elrod-Branti applies to Embry's role, permitting dismissal for political reasons. |
| Whether any First Amendment protection overrides for Embry's speech | Public speech unrelated to affiliation should be protected | Speech tied to affiliation falls within Elrod-Branti exception | No override; speech related to affiliation falls within Elrod-Branti exception. |
Key Cases Cited
- Elrod v. Burns, 427 U.S. 347 (U.S. (1976)) (policy-based dismissals allow firing for political affiliation)
- Branti v. Finkel, 445 U.S. 507 (U.S. (1980)) (Elrod-Branti line governs patronage dismissals for policymakers)
- Connick v. Myers, 461 U.S. 138 (U.S. (1983)) (speech-related First Amendment scrutiny applies when public concern is involved)
- Pickering v. Bd. of Educ., 391 U.S. 563 (U.S. (1968)) (balances employee speech against governmental interests in efficiency)
- Bonds v. Milwaukee County, 207 F.3d 969 (7th Cir. 2000) (policymaking need for political allegiance with limited First Amendment protection)
- Tomczak v. City of Chicago, 765 F.2d 633 (7th Cir. 1985) (factors for policymaking determination in local government)
- Selch v. Letts, 5 F.3d 1040 (7th Cir. 1993) (high-level discretionary authority supports Elrod-Branti exception)
- Riley v. Blagojevich, 425 F.3d 357 (7th Cir. 2005) (public speech closely tied to political affiliation lacks protection)
- Davis v. Ockomon, 668 F.3d 473 (7th Cir. 2012) (reiterates political allegiance as job requirement where appropriate)
- Heck v. City of Freeport, 985 F.2d 305 (7th Cir. 1993) (considerations for appointive term limits aiding patronage)