54 F.3d 410 | 7th Cir. | 1995
John Gregorich, a former research attorney for the Appellate Court of Illinois, Fourth District, brought this action under 42 U.S.C. § 1983 against Carl Lund, the former Presiding Justice of that court. Mr. Grego-rich alleged that Justice Lund fired him for engaging in union-organizing activities. Mr. Gregorich also alleged a defamation claim, based on state law, against Darryl Pratscher
I
BACKGROUND
A. Facts
John Gregorich began working as a staff research attorney for the Appellate Court of Uinois, Fourth District in December 1981. Prior to January 1, 1991, the court’s leave policy allowed employees to carry over unused vacation days into the next calendar year. The policy also entitled employees to compensation for unused vacation time in the event of termination. On November 26, 1990, the Illinois Supreme Court changed the leave policy. The amended policy allowed employees to carry over no more than ten days from year to year. Although the new policy became effective January 1, 1991, it applied retroactively. It thus prevented Mr. Gregorich from receiving benefits for sixty-seven of the seventy-seven vacation days he had previously accumulated.
Mr. Gregorich and his fellow research attorneys were unhappy with the new rule. In an effort to change it, Mr. Gregorich began, in February 1991, a union-organizing campaign among the research attorneys of the Fourth District. He also discussed unionization with employees in the Clerk’s Office. In April 1991, Mr. Gregorich and another research attorney signed unionization cards authorizing the Teamsters to represent them. However, the Teamsters subsequently withdrew their representation petition that had been pending before the Illinois Labor Relations Board. On November 20, 1991, Carl Lund, then the Presiding Justice of the Fourth District, discharged Mr. Gregorich on grounds of insubordination. Shirley Wilgen-busch, Research Director for the Fourth District, and Darryl Pratscher, Clerk of the Court, apparently had informed Justice Lund that Mr. Gregorich was acting in a “rude or discourteous manner.” R.l at 9. Mr. Grego-rich believed that these allegations were pre-textual and that he had been fired in retaliation for his union-organizing activities.
B. Earlier Proceedings
Mr. Gregorich filed a two-count complaint against several defendants. The first count named as defendants the Illinois Supreme Court and William Madden, the Acting Director of the Administrative Office of the Illinois Courts. It alleged that these defendants had violated the Contracts Clause, as well as Mr. Gregorich’s procedural and substantive due process rights, by changing retroactively the leave policy. Mr. Gregorich’s second count consisted of a wrongful discharge claim against Justice Lund, Ms. Wil-genbusch, and Mr. Pratscher, in their individual capacities. It also included a defamation claim against the latter two defendants. The federal claims involved in this count centered around Mr. Gregorich’s rights of free association and substantive and procedural due process. The portion of this count that articulates the First Amendment claim central to this appeal states:
By terminating plaintiffs employment with the Fourth District Appellate Court in part because of a personal desire to retaliate against plaintiff for engaging in union activities and to discourage other employees of the Fourth District Appellate Court from engaging in union activities, defendant CARL A. LUND, acting under color of State law, violated plaintiffs right of free association guaranteed by the First and Fourteenth Amendments of the United States Constitution.
R.l at 15, ¶ 62. Mr. Gregorich sought compensatory and punitive damages from the three defendants. He also sought an order of reinstatement.
The defendants filed a motion to dismiss. The district court dismissed Mr. Gregorich’s first count in its entirety.
II
DISCUSSION
A. Qualified Immunity
1.
Government officials who deprive an individual of constitutionally protected rights while acting under the color of state law are subject to personal liability for damages. See 42 U.S.C. § 1983. However, officials performing discretionary functions may avoid such liability by invoking the defense of qualified immunity, a powerful shield that insulates officials from suit as long as their conduct does not violate a “clearly established” constitutional right “of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).
Justice Lund contends that it was not clearly established at the time Mr. Gregorich was terminated that judicial research attorneys had the right to engage in union-organizing activities.
2.
To determine whether it was clearly established that Mr. Gregorieh had a right to engage in union-organizing activities, we must identify the nature of his claim and the legal standards that govern it. Mr. Gregorich’s claim is grounded in the First Amendment right of free association. See NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170-71, 2 L.Ed.2d 1488 (1958); see also Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 104 S.Ct. 3244, 3249-50, 82 L.Ed.2d 462 (1984). When a public employee alleges that he was fired in violation of his constitutional right to associate freely with others, we analyze his claim under the approach announced by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) and reiterated in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). See Griffin v. Thomas, 929 F.2d 1210, 1212-14 (7th Cir.1991).
It is important to underscore the significance that the latter part of the analysis announced in Pickering plays in qualified immunity cases. Differences in the nature of the competing interests from ease to case make it difficult for a government official to determine, in the absence of case law that is very closely analogous, whether the balance that he strikes is an appropriate accommodation of the competing individual and governmental interests. We must remember that
3.
We now turn to the application of these principles to the case before us. Initially, we must determine whether Mr. Gregorich’s expression touched upon a matter of public concern. “[Pjrivate speech that involves nothing more than a complaint about a change in the employee’s own duties may give rise to discipline without imposing any special burden of justification on the government employer.” National Treasury Employees Union, — U.S. at —, 115 S.Ct. at 1013. “[Wjhen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” Connick, 461 U.S. at 147, 103 S.Ct. at 1690. The determination whether the assoeiational rights that were exercised touched upon a matter of .public concern must be based on “the content, form, and context” of his expression “as revealed by the whole record.” Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690. “[O]ur cases indicate that of these three, content is the most important.” Cliff v. Board of Sch. Comm’rs, 42 F.3d 403, 409 (7th Cir.1994) (collecting eases). Mr. Gregorieh’s motive is a relevant', but not necessarily a dispositive consideration. Id. at 409-10; see Smith v. Fruin, 28 F.3d 646, 653 (7th Cir.1994) (“[W]e do not mean to suggest that merely because the employee has a personal interest in the subject of her remarks, they do not constitute speech on a matter of public concern.”), cert. denied, — U.S. —, 115 S.Ct. 735, 130 L.Ed.2d 638 (1995).
In this case, Mr. Gregorich’s activity consisted of union-organizing efforts among the judicial research attorneys of the Fourth District. Courts have recognized that such activity, in a broad sense, touches upon matters of public concern. See American Postal Workers Union v. U.S. Postal Serv., 830 F.2d 294, 301 (D.C.Cir.1987) (“The urge to unionize certainly falls within the category of expression that is ‘fairly considered as relating to any matter of political, social, or other concern to the community.’ ”) (quoting Connick, 461 U.S. at 146, 103 S.Ct. at 1689-90); cf. Boddie v. City of Columbus, 989 F.2d 745, 750 (5th Cir.1993) (noting that “much more of the range of [union] activity than the range of employee speech ... is inevitably of public concern”). However, the fact that an employee’s expression concerns a topic of public import “does not automatically” render his expression protected. Cliff, 42 F.3d at 410; see also Boals v. Gray, 775 F.2d 686, 693 (6th Cir.1985) (stating that an employee’s expression, as a matter of law, does not touch upon a matter of public concern “merely because it is union-related”). Therefore, we must probe the record to determine the “precise content, form, and context” of Mr. Gregorich’s assoeiational activity. See
Having determined that Mr. Gregorich’s expression involved a matter of public concern, we must now evaluate whether, at the time that Justice Lund acted, the existing case law, reasonably read, clearly established that Mr. Gregorich’s interest in union-organizing outweighed the State’s interest in the efficiency of its court system. As Mr. Grego-rich argues, it is well established, as a general proposition, that public employees have the right to associate with each other to address issues of mutual concern and of public importance.
It is possible to conceive of some positions in public employment in which the need for confidentiality is so great that even completely correct public statements might furnish a permissible ground for dismissal. Likewise, positions in public employment in which the relationship between superior and subordinate is of such a personal and intimate nature that certain forms of public criticism of the superior by the subordinate would seriously undermine the effectiveness of the working relationship between them can also be imagined.
391 U.S. at 570 n. 3, 88 S.Ct. at 1735 n. 3; see also Rankin v. McPherson, 483 U.S. 378, 390, 107 S.Ct. 2891, 2900, 97 L.Ed.2d 315 (1987) (“The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee’s role entails.”); Connick, 461 U.S. at 151, 103 S.Ct. at 1692 (“When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.”).
Therefore, although at the time Justice Lund acted, a public employee could associ
In Meeks v. Grimes, 779 F.2d 417 (7th Cir.1985), we noted in the context of a political patronage firing that a judge’s chambers are perhaps “[t]he paradigm example” of an environment in which a'close working relationship is essential to perform successfully the public function. Id. at 423. Other courts and jurists have recognized that those who work closely with judicial officers must be loyal, cooperative, and responsible.
The record in this ease establishes that, like the judicial assistants referenced in the
We conclude that, at the time he acted, the state of the case law afforded Justice Lund a reasonable basis for concluding that someone with Mr. Gregorich’s responsibilities to the court had an obligation to refrain from taking such an adversarial role to the court. We emphasize that it is not necessary for us to determine in this case how the Pickering-Connick test ought to be applied in the particular circumstances of judicial-staff relationships of the court in question here or of any other court. No such question is presented to us here and the wide variety of staff arrangements now employed by various tribunals, state and federal, counsel against such a broad-stroke approach. We hold only that, at the time he acted, Justice Lund had a reasonable basis for his conclusion and therefore could invoke the protection of qualified immunity.
B. Supplemental Jurisdiction Claim
Appellants Pratscher and Wilgenbusch ask us to dismiss Mr. Gregorich’s defamation claim if we find Justice Lund entitled to qualified immunity. They note that, in the absence of any claims against Justice Lund, no federal issues will remain in this case. Mr. Gregorich argues that we should retain the defamation claim. He contends that the district court has expended substantial resources on the issue, that no further discovery is necessary, and that he might not get a fair trial in state court because he is suing state court employees.
We believe that this matter ought to be addressed by the district court. Under the governing statute, 28 U.S.C. § 1367, the district court must determine whether to exercise supplemental jurisdiction over the claim. In this case, the district court has not had an opportunity to consider whether it should retain the defamation claim in the absence of Mr. Gregorich’s federal constitutional claims. Accordingly, we remand the defamation claim for this purpose. See 28 U.S.C. § 1367(e)(3) (stating that “[t]he district court may decline to exercise supplemental jurisdiction over a claim” if it “has dismissed all claims over which it has original jurisdiction”).
Conclusion
For the foregoing reasons, the district court’s denial of qualified immunity to Justice
REVERSED AND REMANDED.
. In a footnote, the court noted that, although Justice Green, Justice Lund's successor, appeared to be a defendant, "his name does not appear in either the 'Facts’ section or the 'Legal Claims' section of the complaint.” R.21 at 3 n. 3. It then stated that "[e]ither the plaintiff fails
. See also Elder v. Holloway, — U.S. —, —, 114 S.Ct. 1019, 1021, 127 L.Ed.2d 344 (1994); Maltby v. Winston, 36 F.3d 548, 554 n. 6 (7th Cir.1994) (stating that qualified immunity "is not merely a defense to liability but an immunity from suit”), cert. denied, — U.S. —, 115 S.Ct. 2576, 132 L.Ed.2d 827 (1995).
. In the district court. Justice Lund disputed Mr. Gregorich’s claim that he was discharged for engaging in union-organizing activities. However, Justice Lund concedes for purposes of this appeal, as he must, see McGrath v. Gillis, 44 F.3d 567, 569 (7th Cir.1995) (noting that the court has
. Although Pickering focused upon a public employee’s right of free speech, while Mr. Gregorich's First Amendment claim focuses upon his right of free association, our Circuit applies the test announced in Pickering and Connick to both free speech and free association claims. See Griffin, 929 F.2d at 1212-14 (reasoning that Con-nick was directed toward expressive activity generally). The Circuits are split on this issue. Compare Griffin, 929 F.2d at 1212-14 (holding that Connick test applies to both free speech and free association claims) and Boals v. Gray, 775 F.2d 686 (6th Cir.1985) (same) with Coughlin v. Lee, 946 F.2d 1152, 1158 (5th Cir.1991) (limiting Connick to free speech claims and thus not requiring public employees to demonstrate that their associational activity relates to a matter of public concern) and Hatcher v. Board of Pub. Educ. & Orphanage, 809 F.2d 1546, 1558 (11th Cir.1987) (same). See also Sanguigni v. Pittsburgh Bd. of Pub. Educ., 968 F.2d 393, 400 (3d Cir.1992) (recognizing the conflict, but failing to take a position); Clark v. Yosemite Community College List., 785 F.2d 781, 791 (9th Cir.1986) (noting that because defendant had not raised the question, the court had no need to decide whether the plaintiff’s "right of association with the union touches on a matter of public concern so as to give rise to a cause of action in federal court for a violation of First Amendment rights”).
. See, e.g., Smith v. Arkansas State Highway Employees, 441 U.S. 463, 465, 99 S.Ct. 1826, 1828, 60 L.Ed.2d 360 (1979) (per curiam) ("The public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so.”); Boddie v. City of Columbus, 989 F.2d 745, 748 (5th Cir.1993); Morfin v. Albuquerque Pub. Schs., 906 F.2d 1434, 1438 (10th Cir.1990); Missouri Nat’l Educ. Ass'n v. New Madrid County R-1 Enlarged Sch. Dist., 810 F.2d 164, 166-67 (8th Cir.1987); Hatcher v. Board of Pub. Educ. & Orphanage, 809 F.2d 1546, 1558 (11th Cir.1987); Boats v. Gray, 775 F.2d 686, 692 (6th Cir.1985); Hanover Township Fed’n of Teachers v. Hanover Community Sch. Corp., 457 F.2d 456, 460 (7th Cir.1972); McLaughlin v. Tilendis, 398 F.2d 287, 288 (7th Cir.1968).
. See, e.g., McDaniel v. Woodard, 886 F.2d 311, 315 (11th Cir.1989) (holding that state trial judge was justified in dismissing confidential secretary for her refusal to obey direct order, and noting that the judge was not required to " 'tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships’") (quoting Connick, 461 U.S. at 154, 103 S.Ct. at 1693-94); Balogh v. Charron, 855 F.2d 356, 356-57 (6th Cir.1988) (“Judicial aides who work in chambers and are assigned to one judge as court officer ... normally handle sensitive information, about cases of a confidential nature, information which is not public information. Judges must be, able to rely on the confidentiality of the relationship with such aides, just as they must rely on the confidentiality of their relationship with their private secretaries and law clerks.”); Oliva v. Heller, 839 F.2d 37, 40 (2d Cir.1988) (noting, in an absolute immunity case, that “a law clerk is probably the one participant in the judicial process whose duties and responsibilities are most intimately connected with the judge's own exercise of the judicial function"); Hall v. Small Business Admin., 695 F.2d 175, 176 (5th Cir.1983) ("Judges' robes must be as spotless as their actual conduct. These expectations extend to those who make up the contemporary judicial family, the judge’s law clerks and secretaries.”); Fredonia Broadcasting Corp. v. RCA Corp., 569 F.2d 251, 256 (5th Cir.) ("[L]aw clerks may serve as sounding boards for ideas, often affording a different perspective, may perform research, and may aid in drafting memoranda, orders and opinions_ A law clerk, by virtue of his position, is privy to his judge’s thoughts in a way that the parties cannot be.”), cert. denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 167 (1978); cf. Gerald Gunther, Learned Hand 141 (1994) (noting that Judge Hand referred to his law clerks as "puny judges”).
. Cf. B.H. v. McDonald, 49 F.3d 294, 297-98 (7th Cir.1995) (noting, in case involving question .of public access to judicial proceedings, that a judge’s chambers .is "an area traditionally off-limits to the public eyes and ears”).
. See Tr. IV at 75 (reproducing Justice Lund's deposition testimony, in which he claimed that before the Teamsters withdrew the petition they had filed with the Illinois Labor Relations Board, he believed the Board would refuse to recognize a bargaining unit of research attorneys because of "the confidential relationship” they had with the judges of his court); see also Tr. IV, Ex. 4 (reproducing 1987 letter from one appellate court justice to all staff members which stated that "in-house close contact” among judges and staff members was needed "to ensure a good work product” and that "[a]Il suffer if there is a breakdown”).
. See Timm v. Mead Corp., 32 F.3d 273, 276-77 (7th Cir.1994) (discussing factors that should inform district court's inquiry in such circumstances); cf. Eubanks v. Gerwen, 40 F.3d 1157, 1162 (11th Cir.1994) (noting that all federal claims had "been disposed of rather early on at the summary judgment phase,” and remanding with instructions that the district court "should carefully consider whether to dismiss, without prejudice" the remaining state law claim); Frymire-Brinati v. KPMG Peat Marwick, 2 F.3d 183, 192 (7th Cir.1993) (dismissing all federal claims and remanding with instructions that district court apply § 1367(c) to determine whether further federal proceedings on supplemental claim were appropriate).