Cynthiа RUTAN, et al., Plaintiffs-Appellants, v. REPUBLICAN PARTY OF ILLINOIS, et al., Defendants-Appellees.
No. 86-2073.
United States Court of Appeals, Seventh Circuit.
June 8, 1988.
Rehearing Granted Aug. 17, 1988.
848 F.2d 1396
Before COFFEY, RIPPLE and MANION, Circuit Judges.
Argued April 7, 1988. * Judgment and opinion vacated.
Thomas P. Sullivan, Jenner & Block, Chicago, Ill., for defendants-appellees.
MANION, Circuit Judge.
Plaintiffs appeal the district court‘s dismissal of their complaint challenging a public employer‘s use of political considerations in hiring, rehiring, transferring, and promoting employees. See Rutan v. Republican Party of Illinois, 641 F.Supp. 249 (C.D.Ill.1986). We affirm in part, reverse in part, and remand.
I. NATURE OF THE CASE
The basis of plaintiffs’ complaint is that Governor James R. Thompson of Illinois, the Republican Party of Illinois, and various state and Republican Party officials use political considerations in hiring, rehiring from layoffs, transferring, and promoting state employees under Governor Thompson‘s jurisdiction. Because we are reviewing the district court‘s dismissal of the complaint for failure to state a claim upon which relief can be granted, we take the allegations in the complaint as true. See LaSalle National Bank of Chicago v. County of DuPage, 777 F.2d 377, 379 (7th Cir.1985), cert. denied, 476 U.S. 1170, 106 S.Ct. 2892, 90 L.Ed.2d 979 (1986).
According to the complaint, approximately 60,000 state employees work in more than fifty “departments, boards and commissions under the jurisdiction” of Gover
HIRING FREEZE
Effective at the close of business today, November 12, 1980, no agency, department, bureau, board or commission subject to the control or direction of the Governor shall hire any employee, fill any vacancy, create any new position or take any other action which will result in increases, or the maintenance of present levels, in State employment, including personal service contracts. All hiring is frozen. There will be no exceptions to this order without my express permission after submission of appropriate requests to my office.
(Emphasis in original.) Governor Thompson has assigned power over significant employment decisions to the “Governor‘s Office of Personnel.” Plaintiffs contend that the employment decisions made by the Governor‘s Office of Personnel are:
... substantially motivated by political considerations. Such political considerations include whether the individual under consideration is Republican or a relative or friend of a Republican, is sponsored by an influential Republican, is a financial supporter of the Republican Party or an influential Republican, is a friend or supporter of Defendant Thompson or is sponsored by those who are friends or supporters of Defendant Thompson or is sponsored by a member of the Illinois General Assembly who is deemed to be a friend or supporter of Defendant Thompson.
This patronage employment system, plaintiffs claim, creates a significant political advantage “in favor of the ‘ins,’ i.e., Defendant James Thompson and his political allies, and against the ‘outs,’ i.e., those who may wish to challenge in elections.”
The dеfendants are Governor Thompson, the Illinois Republican Party, seven current or former state officials and two Republican Party officials. Plaintiffs sued two of the state officials as class representatives, one as a representative of all “Directors, Heads or Chief Executive Officers ... since February 1, 1981” of state agencies under the Governor‘s jurisdiction and the other as a representative of all persons who acted as “liaisons” between those state agencies and the Governor‘s Office of Personnel. Plaintiffs sued the Republican Party officials as representatives of the class of “all Republican State Central Committee and County Central Committee officials and members ... since February 1, 1981.”
Plaintiffs brought this action both as individuals and as representatives of six different classes. These classes are: (1) voters; (2) taxpayers; (3) politically unacceptable employees denied promotions; (4) politically unacceptable employees denied transfers; (5) politically unacceptable employees who have not been rehired after being laid off; and (6) politically unacceptable employment applicants who have applied for but not received a job.
Plaintiff Cynthia Rutan has worked for the Department of Rehabilitative Services since 1974. She has neither been active in the Republican Party nor supported Republican candidates. Since 1981, Rutan has applied for promotion into supervisory positions in the Department of Rehabilitative Services. Defendants allegedly filled each of these supervisory positions with someone less qualified but “favored on a political basis by the Governor‘s Office of Personnel.” Rutan sued on her own behalf and as a class representative of those denied promotions as a result of the patronage system.
Plaintiff Franklin Taylor works for the Department of Transportation. He does not support the Republican Party. In 1983, Taylor applied for a promotion. A less qualified person, whom the Fulton County Republican Party supported, received the promotion. Taylor subsequently requested a transfer to a different county. Taylor was allegedly advised that he was not transferred because the Republican Party
Plaintiff Ricky Standefer was hired in a temporary position at the State Garage in Springfield in May, 1984. In November of that year, he and five other employees were laid off. The five other employees, who had Republican Party support, were offered other state jobs. Standefer, who had voted in the Democratic Party primаry, was not. He sued on his own behalf and as a class representative of those who, as a result of the patronage system, have not been rehired after being laid off.
Plaintiff Dan O‘Brien was employed as a “Dietary Manager I” at the Department of Mental Health and Developmental Disabilities’ Lincoln Development Center. O‘Brien has voted only once in a primary, and that was in a Democratic Party primary. O‘Brien was laid off on April 5, 1983. Under the “rules of the Department of Central Management Services,” a laid off employee can be recalled within two years. If recalled, the employee‘s benefits continue and he does not lose seniority. “[R]ecall within that time period means no loss of seniority and continuation of other employment benefits.” In December of 1984, an administrator at the Lincoln Development Center told O‘Brien that he would be recalled. The administrator stated, however, that he was waiting to receive the necessary exception to Governor Thompson‘s hiring freeze. In February of 1985, O‘Brien was told that the Governor‘s Office had denied him an exception to the freeze. “Several months” after being laid off, O‘Brien attempted to and “ultimately” did receive employment with the Department of Corrections. He obtained this job after obtaining the support of the Chairman of the Logan County Republican Party. This job paid less money than his previous job. O‘Brien sued on his own behalf and as a class representative of those who, as a result of the patronage system, have not been rehired after being laid off.
Plaintiff James Moore “has sought employment with the State of Illinois particularly with the Department of Corrections” since 1978. In 1980, Moore received a letter from a Republican state representative informing him that he would have to “receive the endorsement of the Republican Party in Pope County before I can refer your name to the Governor‘s office.” Moore alleges that while he was attempting to obtain a position with the State, “the son of the current Chairman of the Pope County Republican Central Committee, ... the son-in-law of the Vice-Chairman and precinct committeewoman of the Pope County Republican Central Committee,” and a Republican precinct committeeman were hired by the State in positions for which Moore was qualified. Moore sued on his own behalf and on behalf of all those denied employment as a result of the patronage system.
Plaintiffs also brought claims as voters and taxpayers. They claimed to represent a class of voters “who are entitled to cast their votes and use the election process to change and influence the direction of government and who have an interest in having a voice in government of equal effectiveness with other voters.” They аlso claimed to represent a class of taxpayers who “are entitled to have monies provided by the taxpayers of Illinois spent only for State purposes and not spent on the operation and maintenance of a State political patronage system.” As voters, plaintiffs claimed that the patronage system has diminished the value of their votes, thus denying them “a voice in government of equal effectiveness with other voters.” As taxpayers, plaintiffs claimed to have been deprived of tax “monies ... which have been expended for the support of the patronage system and not for a governmental purpose.”
Plaintiffs sought relief under numerous federal and state law theories. See Rutan, 641 F.Supp. at 252-59. On appeal we are concerned with two: (1) their claims as employees or potential employees that the patronage system violated their rights under the
Defendants moved to dismiss the complaint under
II. ANALYSIS
A. The District Court‘s Nonconsideration Of The Class Action Question.
Before addressing the substantive issues raised on this appeal, we must first address the district court‘s failure to consider whether plaintiffs may properly bring this case as a class action. The district court dismissed the complaint under
The failure to address the class action issue, however, does limit the scope of our judgment. Because no class of plaintiffs or defendants was certified, only the named plaintiffs and named defendants are before this court. See Hickey, 827 F.2d at 238 (citing Board of School Commissioners v. Jacobs, 420 U.S. 128, 130, 95 S.Ct. 848, 850, 43 L.Ed.2d 74 (1975)). Therefore, we treat plaintiffs’ claims as being brought solely by the named plaintiffs against the named defendants. See Roberts v. American Airlines, Inc., 526 F.2d 757, 762-63 (7th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976); see also Pharo v. Smith, 621 F.2d 656, 663-64 (5th Cir.), rehearing granted in part and modified on other grounds, 625 F.2d 1226 (5th Cir.1980) (per curiam).
B. Patronage Employment Claims
Plaintiffs’ employment claims challenge the validity of a longstanding feature of the American political landscape. They each claim that they did not receive some favorable employment decision becаuse the defendants’ employment decisions were substantially motivated by political considerations. Plaintiffs argue that the defendants placed an unconstitutional burden on their freedom of belief and association guaranteed by the
For years, the hiring and retention of public employees rested exclusively within the realm of legislative and executive discretion. A public employee‘s challenge to a particular employment practice that affected his free expression was met with Justice Holmes’ famous pronouncement as a member of the Supreme Judicial Court of Massachusetts that, “[a] policeman may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892); see generally Connick v. Myers, 461 U.S. 138, 143-44, 103 S.Ct. 1684, 1688, 75 L.Ed.2d 708 (1983). The latter half of this century has seen a broad expansion of the rights of employees and a corresponding diminution of the discretion exercised by the legislative and executive branches of government. See Connick, 461 U.S. at 143-47, 103 S.Ct. at 1688-90. The Supreme Court has struck down state laws that required public employees to take an oath denying past or present affiliation with the Communist Party, or other “subversive” organizations, Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952), as well as laws that barred members of the Communist Party and other “subversive” organizations from state employment, Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). Other cases have firmly established that a public employee may not be discharged for speaking out on matters of public concern. See, e.g., Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Moreover, retribution short of discharge that is directed at an employee‘s speech has also been held to violate the
Although broad, public employees’
There are few areas where the balancing of interests under the
Drawing heavily upon Keyishian and Pickering, a plurality of three justices stated that the patronage dismissals unnecessarily restricted political belief and association and that “any contribution of patronage dismissals to the democratic process does not suffice to ovеrride their severe encroachment on
The Court next addressed patronage employment in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), and slightly modified its holding in Elrod. In Branti, two Republican assistant public defenders sued after a newly-elected Democratic public defender threatened them with discharge. The Court ruled for the assistants, holding that a public employer cannot discharge an employee based on party affiliation unless “party affiliation is an appropriate requirement for the effective performance of the public office involved.” Id. at 518, 100 S.Ct. at 1295. Again, the Court expressly limited its consideration of the issues to patronage dismissals. Id. at 513 n. 7, 100 S.Ct. at 1292 n. 7.
In light of the limited nature of the Supreme Court‘s holdings in Branti and Elrod, the courts of appeals have been generally hesitant to extend the rule enunciated in those cases. In LaFalce v. Houston, 712 F.2d 292 (7th Cir.1983), cert. denied, 464 U.S. 1044, 104 S.Ct. 712, 79 L.Ed.2d 175 (1984), this circuit affirmed the dismissal of a complaint filed by a contractor who brought suit alleging that a mayor violated the contractor‘s
The court first found that a contractor‘s loss of a particular bid was less disruptive than an employee‘s loss of a job; a contractor still has other potential contracts to bid on. Moreover, the interference was not likely to affect many businesses, given that most stay on good terms with all major political parties. Id. at 294.
The court then determined that the costs of attempting to interfere with the patronage practices outweighed any interference with political affiliations.
[A]gainst the uncertain benefits of such a rule in promoting the values of the
First Amendment must be set the unknown but potentially large costs. To attempt to purge government of politics to the extent implied by an effort to banish partisan influences from public contracting will strike some as idealistic, others as quixotic, still others as undemocratic, but all as formidable. Patronage in one form or another has long been a vital force in American politics. Civil service laws, ... requiring public contracts to be awarded to the low bidder, laws regulating the financing of political camрaigns, and decisions such as Elrod and Branti have reduced the role of patronage in politics but have not eliminated it entirely. The desirability of reducing it still further raises profound questions of political science that exceed judicial competence to answer....
In the employment context, the courts of appeals have extended Branti and Elrod beyond outright discharges and threats of discharges. For example, the courts have held that a partisan decision not to allow an employee to retain his job after the employee‘s “official” term of employment expires may violate the
In Delong v. United States, 621 F.2d 618 (4th Cir.1980), the Fourth Circuit limited emрloyees’ challenges to patronage practices to those practices that “can be determined to be the substantial equivalent of dismissal.” Id. at 624. In that case, the plaintiff, a Republican, challenged his transfer and reassignment from his position as State Director of the Farmers Home Administration in Maine to a position as a project assistant in Washington, D.C. The plaintiff had been transferred and reassigned as part of a policy of the Secretary of Agriculture to replace Republican state directors with Democrats.
The district court granted the government summary judgment on the ground that plaintiff‘s position as a state director was a “policymaking” position. On appeal, the Fourth Circuit reversed and remanded the case to be considered under Branti‘s newly articulated test that “party affiliation is an appropriate requirement for the effective performance of the public office involved.” Delong, 621 F.2d at 622. In so holding, the court rejected the government‘s argument that the patronage reassignment and transfer of an employee protected under Branti and Elrod could never constitute an unconstitutional burden upon an employee‘s beliefs and associations. The court did, however, limit such challenges to those patronage practices which, while not an actual or threatened discharge, could be considered tantamount to a dismissal. Id. at 623-24. In pertinent part the court reasoned:
Dismissal or the threаt of dismissal for political patronage reasons is of course the ultimate means of achieving by indirection the impermissible result of a direct command to a government employee to cease exercising protected rights of free political association and speech. This is Elrod‘s and Branti‘s specific, narrow application of the principle. We believe that when the principle is applied to patronage practices other than dismissal it is rightly confined to those that can be determined to be the substantial equivalent of dismissal.
In applying the principle, so limited, to the actual or threatened reassignment or transfer of a government employee, the issue thus becomes whether the specific reassignment or transfer does in fact impose upon the employee such a Hobson‘s choice between resignation and surrender of protected rights as to be tantamount to outright dismissal. This much and no more, we conclude, is a necessary implication from the broader principle drawn upon in Elrod.... It is obvious that not every reassignment or transfer can fairly be thought to have this quali
ty. It is equally obvious that in practical terms some might.
The “substantial equivalent of dismissal” standard focuses on the same question presented in constructive discharge cases, that is, whether a particular patronage decision would lead a reasonable person in the plaintiff‘s position to feel compelled to leave his job. See, e.g., Parrett v. City of Connersville, 737 F.2d 690 (7th Cir.1984), cert. dismissed, 469 U.S. 1145, 105 S.Ct. 828, 83 L.Ed.2d 820 (1985). In the course of most, if not all, persons’ employment there are a wide variety of disappointments and possibly some injustices. Most of these are normal incidents of employment that could not be said to lead a reasonable person to quit. See Bristow v. The Daily Press, Inc., 770 F.2d 1251, 1256 n. 4 (4th Cir.1985) (denial of promotion in and of itself cannot constitute a constructive discharge), cert. denied, 475 U.S. 1082, 106 S.Ct. 1461, 89 L.Ed.2d 718 (1986); Schaulis v. CTB/McGraw-Hill, Inc., 496 F.Supp. 666 (N.D.Cal.1980) (“An employer has not effected a constructive discharge merely because an employee believes that she has limited opportunities for advancement....“). However, whether a particular action can be viewed as “substantially equivalent to a dismissal” (or a constructive discharge) is not subject to hard and fast rules. All the circumstances of a case must be taken into account.2 Being placed in a sinecure may be some employees’ idea of the ultimate job. For other employees, enforced idleness may be a humiliating experience as well as one that may permanently impair their professional skills. See Parrett, 737 F.2d at 694. Moreover, there may be special circumstances that sharply increase the severity of impact of what might otherwise be viewed as a routine employment decision. Under the Delong analysis these may all be taken into account. Delong, 621 F.2d at 624. The ultimate issue remains, however, whether a particular patronage decision “imposed so unfair a choice between continued employment and the exercise of protected beliefs and associations as to be tantamount to the choice imposed by threatened dismissal.” Id.
In contrast to the Fourth Circuit‘s analysis in Delong, the Third Circuit has recently held that the rule enunciated in Branti and Elrod extends to any “disciplinary action” by a public employer. In Bennis v. Gable, 823 F.2d 723 (3d Cir.1987), a group of police officers brought suit against several defendants. The officers alleged that the defendants demoted them for engaging in political activity, or alternatively, that the defendants demoted them to make room for the new mayor‘s political supporters. On appeal, the defendants argued that the plaintiffs’ claims that they were demoted to make room for political supporters failed as a matter of law. The defendants contended that the rule enunciated in Branti and Elrod was strictly limited to patronage discharges and did not extend to practices that placed lesser burdens on the plaintiffs’ associational interests. The Third Circuit rejected both this argument and the “substantial equivalent to dismissal” standard set forth in Delong. Id. at 731 n. 9. According to the Third Circuit, the rule enunciated in Elrod and Branti was not limited by the harshness of a particular action but rather extended to the imposition of any “disciplinary action” imposed for the exercise of
Delong and Bennis enunciate significantly different standards for analyzing patronage claims. Delong limits the rule enunciated in Branti and Elrod to constructive discharges. On the other hand, Bennis apparently extends the rule to a
Delong properly extends the protections of Branti and Elrod beyond thе narrow holdings of those cases to protect employees from patronage practices that may, as a practical matter, impose the same burden as the employees’ outright termination. The Delong analysis, however, also properly takes into account the limited nature of the Court‘s holdings in Branti and Elrod and the fact that real differences exist between dismissals and other patronage practices. It also takes into account the substantial intrusion of the federal courts into the political affairs of the states as well as the executive and legislative branches of the federal government that would necessarily flow from extending Branti and Elrod beyond constructive discharges.
By favoring political supporters or those who are connected with political supporters, a patronage system will unquestionably have some negative effects on those persons who do not support or are not connected with the party or faction in power. The partisan denial of a promotion, transfer, or employment application leaves someone in a worse position than he would have been absent patronage considerations. At the same time, however, the burden imposed by such patronage decisions is much less significant than the loss of a job.
While we recognize that in a certain economic sense a person may be harmed as much by the failure to win a job аs by the failure to keep one, we follow the plurality‘s approach in Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986). There the plurality stated that an affirmative action plan‘s discriminatory effects may be justified when it involves the loss of future employment opportunity but not when it involves the loss of a present position. The plurality
Likewise, absent unusual circumstances, employment decisions not involving dismissals, such as failing to transfer or promоte an employee, are significantly less coercive and disruptive than discharges. While a person denied a promotion or transfer will certainly be disappointed and may remain in a lower-paying position, he still retains his job and his ability to meet his financial obligations.
The Sixth Circuit implicitly recognized the distinction between patronage discharges and less burdensome patronage practices in Avery v. Jennings, 786 F.2d 233 (6th Cir.), cert. denied, 477 U.S. 905, 106 S.Ct. 3276, 91 L.Ed.2d 566 (1986), which upheld patronage hiring practices against
The Sixth Circuit affirmed. The court found that the
When balanced against the more limited burdens imposed by patronage practices other than dismissing or constructively discharging an employee, other interests strongly weigh against broadly expanding the rule enunciated in Branti and Elrod. In a representative government, the courts must afford the political process and political institutions great deference. Extending Branti and Elrod to virtually all employment decisions would raise profound
Moreover, using political considerаtions in employment decisions is as old as this country. Although the age of a particular practice does not immunize it from constitutional challenge, see, e.g., Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), “[i]f a thing has been practiced for two hundred years by common consent, it will need a strong case for the
Broad-based political parties supply an essential coherence and flexibility to the American political scene. They serve as coalitions of different interests that combine to seek national goals. The decline of party strength inevitably will enhance the influence of special interest groups whose only concern all too often is how a political candidate votes on a single issue. The quality of political debate, and indeed the capacity of government to function in the national interest, suffer when candidаtes and officeholders are forced to be more responsive to the narrow concerns of unrepresentative special interest groups than to overarching issues of domestic and foreign policy.
Branti, 445 U.S. at 532, 100 S.Ct. at 1301 (Powell, J., dissenting).
Finally, we note that the practical considerations relied on by this court in LaFalce are even more compelling in this case. Recognizing the rights asserted by plaintiffs in this case would potentially subject public officials to lawsuits every time they make an employment decision. We doubt that there is a single disappointed employee who could not point to political disagreement, or simply lack of agreement between himself and a hiring official or the person who received the desired position. Political issues and beliefs do not come in neat packages wrapped “Democratic” and “Republican.” A wide variety of issues, interests, factions, parties, and personalities shape political debate. Moreover, it is questionable whether “politics” could be meaningfully separated from other considerations such as friendships, compatibility, and the enthusiasm to pursue the stated job goals. The Supreme Court has shown great reluctance to have the federal courts preside as “Platonic Guardians” over state employment systems. See Connick, 461 U.S. at 143, 103 S.Ct. at 1688 (“[G]overnment offices could not function if every employment decision became a сonstitutional matter.“); Bishop v. Wood, 426 U.S. 341, 349, 96 S.Ct. 2074, 2080, 48 L.Ed.2d 684 (1976) (“[F]ederal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies.“) By asking that we review virtually every significant employment decision for absolute political neutrality, plaintiffs essentially ask that we constitutionalize civil service and then preside over the system. This would be an unprecedented intrusion into the political affairs of the states as well as the executive and legislative branches of the federal government. In the absence of a clear indication from the Supreme Court, we will not take such a large step.
In sum, we believe Delong‘s analysis provides the appropriate inquiry in patronage cases involving practices other than the actual or threatened dismissal from employment. In the political world in which democratic institutions exist, courts
Having determined the appropriate analysis to apply to plaintiffs’ claims, we must next determine whether, under that analysis, the district court properly dismissed plaintiffs’ claims. Under
Moore alleges that he applied for jobs that were awarded to less qualified but politically favored persons. The district court correctly dismissed this claim. As we explained above, rejecting an employment application does not impose a hardship upon an employee comparable to the loss of job. See Wygant, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (plurality opinion); see also Avery v. Jennings, 786 F.2d 233 (6th Cir.1986).4 Failing to obtain a particular position disappoints, but no more so than the plaintiff‘s failing to obtain employment in Avery, 786 F.2d at 236-37, the contractor‘s failing to obtain a contract in LaFalce, 712 F.2d at 294, or the independent contractors’ losing their working relationships with the state in Horn, 796 F.2d at 674-75, and Sweeney, 669 F.2d at 545-46. Any burden imposed on an employment applicant does not outweigh the significant intrusion into state government required to remedy such a claim. While the wisdom of patronage hiring practices is certainly open to debate, the validity of such practices is something more appropriately addressed to the legislature rather than the courts.
The claims of Rutan and Taylor are more problematic than the claims of an employment applicant. Rutan alleges that she has been denied promotions that went to less qualified but politically favored persons. Taylor alleges that he has been denied a promotion that went to a less qualified but politically favored person. He also alleges that he was denied a transfer because he did not have the support of the Republican Party Chairmen in Fulton and Schuyler Counties. Although a close ques
If we were reviewing this case after trial and the facts pleaded in the complaint constituted the only evidence in the record, the district court‘s judgment would be affirmed. As discussed above, merely failing to transfer or promote an employee is significantly less coercive or disruptive than discharging an employee. However, dismissing a complaint under
We also note that both Rutan and Taylor appear to have remained in their positions after the challenged employment decision. This is certainly relevant in determining the severity of the impact of the challenged patronage decision but does not as a matter of law prevent Rutan and Taylor from proceeding with their claims. We agree with the position implicit in Delong that a
We emphasize that the issue is not whether partisan reasons entered into a particular employment decision. Rather, the issue is whether a partisan decision imposed such a burden upon a particular employee that it would have led a reasonable employee to quit. There are a wide variety of employment decisions made every day that result in disappointment to employees. For every person promoted there are several others who wish they had been. Federal court is not intended to be the final arbiter for every real or imagined slight claimed by disappointed employees. It is only when a particular patronage practice could reasonably be thought to be the substantial equivalent of a dismissal that such a practice violates the
Standefer‘s and O‘Brien‘s claims are more straightforward. Standefer alleges that he was laid off from a “temporary position” at the State Garage in Springfield along with five other employees. The five other employees, who had the support of the Republican Party, were offered other state jobs. Standefer was not. Resolving all reasonable inferences from these facts in Standefer‘s favor, these allegations may support a claim that a public employer conditioned Stаndefer‘s continued employment with the State upon Standefer‘s political affiliation. This is the type of conduct found constitutionally impermissible in Branti and Elrod.
This is not to say that a laid-off employee is automatically entitled to be considered for other positions with the State, or even his old position, without patronage considerations being taken into account. Failing to rehire after layoff does not in and of itself violate the rule enunciated in Branti and Elrod. Many laid-off employees will stand essentially in the position of new job applicants when they seek a position. But not all employees will be in that position. If a formal or informal system exists for placing employees into other positions, that
On remand, the court must consider all the facts and circumstances of Standefer‘s case with the ultimate inquiry being whether a politically motivated failure to place Standefer in another position was the substantial equivalent of a termination from employment. In making this determination, we believe that several facts deserve special consideration. The district court should consider: whether the employment relationship was considered to be “temporary” rather than “permanent“; whether the “layoff” was merely the end of a temporary position or whеther it was a true layoff; whether employees had reasonable expectations of placement into other positions upon layoff; whether the previous employment with the State was simply a minor factor considered with many others in an ad hoc process or whether it was essentially determinative in being placed in the new position; and, whether there was a substantial time lapse between the layoff and placement of other employees or whether the placement into other positions was made contemporaneously with the layoff. Although we have listed these facts, we do not purport to delineate every possible factor or the weight to be given to each factor. Rather, as stated above, the court must look at all the facts and circumstances with an eye towards ultimately determining whether failing to place Standefer in a position after layoff was substantially equivalent to terminating his employment.
O‘Brien alleges that he was laid off from a position at the Lincoln Development Center. He does not allege that he had any specific right to recall. But he does allege that, under the Center‘s policies, he could be recalled within two years, and if recalled, there would be no break in his seniority and other benefits. “Several months” after being laid off he received a position with the Department of Corrections in which he had nо accrued seniority or benefits. In February of 1985 (apparently after he was working at the Department of Corrections), he was told by an administrator at the Center that he would be rehired if the Center received an exception to the “hiring freeze.” The Governor‘s Office denied the request for an exception.
Laying off an employee suspends the employee‘s working relationship with an employer but does not usually terminate the relationship. Absent indications that the layoff of an employee is “permanent,” a layoff will typically involve some formal or informal expectation of being placed back in the position if, within some specified or reasonable time period, the job becomes open once again. A person who has ordered his life around a particular job, built up experience and seniority in the position, and has a reasonable expectation of being recalled to that position stands in far different position than an employment applicant. After a layoff, a recall to the same job conditioned upon an employee‘s political affiliation is the type of inherently coercive conduct that Branti and Elrod found to violate the
There are some factors in O‘Brien‘s case that take it beyond a straight failure to recall from layoff case. First, O‘Brien does not allege that there was a general recall that he was left out оf because he was not a Republican supporter. In fact, he does not even allege that his position was filled by anyone within the two-year recall period. Absent these facts, he may have a difficult time proving his claims. Nonetheless, the allegation in the complaint that, absent political considerations, he would have been granted an “exception” to the “hiring freeze,” and thus been reinstated into his job, is sufficient to state a claim for relief.
Second, O‘Brien apparently held a position with the Corrections Department at the time he was denied an exception to the “hiring freeze.” Thus, the alleged patronage system did not deny him employment altogether. Nonetheless, as discussed earlier, the fact that a person is on the state payroll does not automatically render the claim insufficient as a matter of law.
In sum, we affirm the district court‘s decision dismissing Moore‘s claim. We re
D. Voter Challenges to Patronage Practices — Standing.
In addition to challenging the alleged patronage system as employees, plaintiffs, as voters, also claim that the patronage system deprived them of “equal access and effectiveness of elections.” Plaintiffs allege that the patronage system gives Governor Thompson and his supporters a significant advantage over their opposition in elections. The district court never reached the merits of this claim on the ground that the plaintiffs lacked standing. We agree.
In Shakman v. Dunne, 829 F.2d 1387 (7th Cir.1987), cert. denied, 484 U.S. 1065, 108 S.Ct. 1026, 98 L.Ed.2d 991 (1988), this circuit analyzed the standing requirement as applied to claims by candidates and voters challenging patronage hiring practices in Cook County, Illinois. In Shakman, the candidates and voters claimed that patronage hiring had the “purpose and effect” of giving incumbent Democratic officials a significant advantage in communicating with the electorate. The court rejected plaintiffs’ claims, holding that the candidates and voters had no standing to challenge patronage hiring. In finding that the plaintiffs lacked standing, the court reasoned that the chain of causation between the challenged governmental activity and the alleged injury was too tenuous:
[W]e find the line of causation between the appellants’ activity and the appellees’ asserted injury to be particularly attenuated.... [T]he line of causation depends upon countless individual decisions. Moreover, those countless individual decisions must depend upon ... countless individual political assessments that those who are in power will stay in power. It is not the hiring policy itself which creates any advantage for the incumbents. Any other candidate is entirely free to assert that, if elected, he will follow the same policy. Any advantage obtained by the incumbent is obtained only if the pоtential workers make an independent evaluation that the incumbent, and not the opposition, will win. The plaintiffs will be at a disadvantage if — and only if — a significant number of individuals seeking political job opportunities determines the ‘ins’ will remain the ‘ins.’
Id. at 1397. The court also noted that so many factors, many not even capable of articulation, determine a person‘s political activity that the plaintiffs could not say that their alleged injuries were “fairly traceable” to the defendants. Id.; see also Winpisinger v. Watson, 628 F.2d 133 (D.C.Cir.), cert. denied, 446 U.S. 929, 100 S.Ct. 1867, 64 L.Ed.2d 282 (1980) (supporters of President Carter‘s primary opponent did not have standing to challenge Carter Administration award of 275,000 census jobs allegedly conferred on a political patronage basis).
Here, plaintiffs’ standing argument is no different from that rejected in Shakman. In fact, plaintiffs made clear that their claims are virtually the same claims the district court held sufficient to confer standing in Shakman (which was reversed after oral argument in this case). See Shakman v. Democratic Organization of Cook County, 481 F.Supp. 1315 (N.D.Ill.1979), rev‘d in relevant part, 829 F.2d 1387 (7th Cir.1987). Like the plaintiffs in Shakman, plaintiffs contend that patronage has created an advantage in favor of the incumbents.
This does not confer standing on voters. The causal link between any “loss”
Each side shall bear its own costs.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
RIPPLE, Circuit Judge, concurring in part and dissenting in part.
I join that part of the court‘s judgment dismissing the plaintiffs’ claims, brought as voters, which assert that the patronage system deprives them of “equal access and effectiveness of elections.” R. 1 at ¶ 24(d). As the majority notes, that aspect of this case is governed by our holding in Shakman v. Dunne, 829 F.2d 1387 (7th Cir.1987), cert. denied, 484 U.S. 1065, 108 S.Ct. 1026, 98 L.Ed.2d 991 (1988).
I also concur in that portion of the judgment that remands the claims of Cynthia Rutan, Franklin Taylor, Ricky Standefer, and Dan O‘Brien to the district court for further proceedings. However, I respectfully part company with my brothers on the appropriate test that ought to be applied upon remand. Today, the majority adopts the wooden analysis of Delong v. United States, 621 F.2d 618 (4th Cir.1980), a test formulated immediately after the Supreme Court‘s decision in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), and one that has not gained respect in the other circuits that have had the time to take a more measured view of the holding of Branti. As the majority points out, the Third Circuit has explicitly disavowed the Delong approach in Bennis v. Gable, 823 F.2d 723 (3d Cir.1987). Moreover, this circuit and the Eleventh Circuit have also taken far more reasoned approaches to the analysis of Branti and Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). See Hermes v. Hein, 742 F.2d 350, 353 (7th Cir.1984); Waters v. Chaffin, 684 F.2d 833, 837 n. 9 (11th Cir.1982).1
Although the Delong test attempts to apply the Elrod criteria to cases not involving discharge, its approach is an illusory one. It places an unrealistic burden of proof on the plaintiff and creates an impossible judicial task. To succeed, the plaintiff must establish that, although a reasonable person would resign under such pressure to his first аmendment rights, he has decided to “hang on.” It is not surprising that the Delong test would produce such an unrealistic burden of proof; it is premised on a fundamental misapprehension of the analysis required by established first amendment jurisprudence. As the Third Circuit noted in Bennis, “the constitutional violation is not in the harshness of the sanction applied, but in the imposition of any disciplinary action for the exercise of permissible free speech.” 823 F.2d at 731 (footnote omitted). The government must establish that the particular restriction on first amendment freedoms which it desires to impose can be justified by the important needs of the government. See Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708 (1983); Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 605-06, 87 S.Ct. 675, 684-85, 17 L.Ed.2d 629 (1967); see also McGill v. Board of Educ. of Pekin Elementary School Dist. No. 108, 602 F.2d 774, 780 (7th Cir.1979). If the government cannot justify the need to restrict the first amendment freedoms of an individual for an important governmental reason, it may not impose any punishment on that individual for the exercise of his first amendment rights. By contrast, the majority‘s approach is simply a manifestation of its willingness to tolerate “mi
The majority‘s holding today will subject countless dedicated government workers, for whom party affiliation is not an “appropriate requirement for the effective performance of the public office involved,” Branti, 445 U.S. at 518, 100 S.Ct. at 1295, to harassment because they have chosen not to contribute to or work for a particular candidate or cause. For instance, the clerical worker who has strong views on the abortion issue and refuses to support a candidate of opposing views may now be passed over for promotion, denied transfer to a more favorable location, or assigned the most undesirable tasks in the office. The worker who decides not to support a particular candidate because, in the worker‘s view, the candidate is not committed to racial equality can be treated in identical fashion. This growing acceptance of infringements on first amendment rights on the ground that the curtailment is minor is indeed a disturbing trend. “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way....” Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746 (1886).3
I must also respectfully dissent from the decision to affirm that portion of the district court‘s judgment that dismisses on the complaint the allegation of James Moore that his freedom of association was violated by the policy of the state to hire only those applicants who were determined to be politically acceptable. Patronage hiring admittedly presents a different situation from politically based firings and adverse personnel actions against state employees. However, as the majority appears to concede, the use of political criteria in the hiring process does implicate first amendment rights. Therefore, it must be determined whether the state‘s purpose in utilizing such politically based criteria serves a sufficiently important governmental inter
The fundamental flaw in the majority‘s approach is that it pays only lip service to the basic standard governing dismissals under Rule 12(b)(6):
In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In complex cases involving both fundamental rights and important questions of public policy, such peremptory treatment is rarely appropriate. See Hobson v. Wilson, 737 F.2d 1, 31 n. 88 (D.C.Cir.1984) (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1230 (1969 & Supp.1984)), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985). In neither Branti nor Elrod did the Supreme Court attempt to deal with patronage practices on such a meager record. Nor did the Sixth Circuit attempt such a feat in Avery v. Jennings, 786 F.2d 233 (6th Cir.), cert. denied, 477 U.S. 905, 106 S.Ct. 3276, 91 L.Ed.2d 566 (1986). Significantly, Avery was decidеd on a motion for summary judgment rather than a 12(b)(6) motion to dismiss. Thus, the court had the benefit of greater detail as to how the patronage system actually operated:
The political affiliation of a job applicant is taken into account in the hiring process in a round-about sort of way. As jobs become available, the official for the most part fills the vacancies informally on an ad hoc basis with friends, relatives, or acquaintances, or with the friends or relatives of political allies. Since plaintiff was unconnected with this network, her application was not considered.
As the majority points out, this case involves individual plaintiffs, not a class action. It also involves one particular political patronage system. However, we know very little, on the basis of the complaint alone, about the impact of this political patronage system on the first amendment rights of job applicants. We also know very little about the justification for this political patronage system. In my view, this case should be remanded to the district court. There, after adequate development of the record, the district court will be able to accomplish several tasks that are essential to a full and fair analysis of this case: 1) a thorough examination of the operation of this patronage system and the effect of that operation on the plaintiff; and 2) a thorough examinаtion of the justifications for this particular system proffered by the defendants.
On the basis of the complaint, we do not even know the specific requirements imposed by this patronage system on the job applicant. We cannot determine, simply on the basis of the complaint, the degree to which the alleged patronage practices — or any combination of them — actually infringe on the first amendment rights of the plaintiff. It is not at all clear what a prospective employee must do to win the endorsement of the party representatives. There
Not only do we know very little about the actual operation of this particular patronage system and the resultant degree of infringement on the applicant‘s first amendment rights, we also know very little about the countervailing need of the state government for such a patronage system. Although the majority discusses at length the benefits of a strong patronage system, its evaluation of those benefits is not based on any knowledge of the actual operation of this system. Rather, its evaluation appears to be based on two sources totally external to this litigation: 1) the majority‘s own predilections; and 2) the majority‘s agreement with the conclusions of the dissenting justices of the Supreme Court of the United States in Branti and Elrod. Neither is an appropriate basis for decision by judges of an intermediate appellate court. It is perfectly proper and, indeed, unavoidable, for judges to evaluate the facts of a case in terms of their own experience. However, to perform that task, one must first know the facts of the case; at this stage of the proceedings, we simply do not have that information. To evaluate, on the basis of the pleadings alone, the need for such an extensive patronage system is pure ipse dixit. Similarly, the majority cannot dismiss this complaint on the basis of the dissenting opinions in Elrod and Branti. I respectfully submit that, as an intermediate appellate court, we ought not rely on a point of view that higher authority has rejected unless we can demonstrate that the record before us justifies such a deviation. Here, of course, we have no record other than the complaint. In short, adjudication of the issue of patronage hiring requires a far more focused inquiry than this court can possibly undertake at this stage of the proceedings.
In my view, the patronage hiring claim ought to be rеmanded to the district court for further development of the record. That court can then render a considered judgment as to whether the rights of this plaintiff have been violated. On review, the judges of this court will be able to evaluate the judgment on the basis of the record — not on the basis of their own suppositions or predilections.
G. HEILEMAN BREWING CO., INC., Plaintiff-Appellee, v. JOSEPH OAT CORPORATION, Defendant-Appellant. No. 86-3118. United States Court of Appeals, Seventh Circuit. Argued May 20, 1987. Decided June 13, 1988. Order Granting Rehearing En Banc July 22, 1988.Notes
Id. at 597, 92 S.Ct. at 2697 (emphasis supplied). Even if we assume, arguendo, that more of a burden is permissible when we are dealing with the implied right of freedom of association rather than the explicit right of free speech, the threatened loss in this case is clearly sufficiently burdensome to amount to a substantial burden on the plaintiffs’ first amendment rights. See Bart v. Telford, 677 F.2d 622, 622, 625 (7th Cir.1982).For at least a quarter-century, this Court has made clear that even though a person has no “right” to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to “produce a result which [it] could not command directly.” Speiser v. Randall, 357 U.S. 513, 526 [78 S.Ct. 1332, 1342, 2 L.Ed.2d 460]. Such interference with constitutional rights is impermissible.