MATTHEW D. CLAUSSEN, еt al., Plaintiffs-Appellants, v. MICHAEL R. PENCE, Governor of the State of Indiana, et al., Defendants-Appellees.
No. 16-1003
United States Court of Appeals For the Seventh Circuit
ARGUED MAY 27, 2016 — DECIDED JUNE 10, 2016
Before POSNER and FLAUM, Circuit Judges, and ALONSO, District Judge.*
FLAUM, Circuit Judge. Plaintiffs are civil servants who hold elected office in the municipality that employs them. They challenge a recently-enacted Indiana law prohibiting persons from simultaneously holding elected office and being employed as civil servants in the same unit of government. Plaintiffs contend that the law violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. The district court granted defendants’ motion to dismiss, and for the reasons that follow, we affirm.
I. Background
In 2012, the Indiana General Assembly enacted
Plaintiffs are civil servants who also serve on city and town councils,1 which are legislative bodies responsible for adopting budgets, levying taxes, and authorizing financial appropriatiоns, among other things. Importantly, city and town councils have the authority to set the annual compensation for the municipal employees in their unit of government. In other words, plaintiffs have the ability to determine their own compensation, with some restrictions.2
It is undisputed that all but one of the plaintiffs earn a significantly higher salаry in their civil service positions than in their elected positions.3 Therefore, plaintiffs contend that if the Law takes effect, they will be forced to resign from elected office.
On February 10, 2015, plaintiffs sued the State of Indiana and the Indiana State Board of Accounts—the state agency most closely tied to enforcеment of the Indiana Law—in federal court in the Northern District of Indiana.4 Relevant to this appeal,
The State filed a motion to dismiss under
II. Discussion
Plaintiffs appeal the dismissal of their First Amendment and Fourteenth Amendment claims. We review de novo the district court‘s dismissal of a complaint under Rule 12(b)(6). Brazil-Breashears v. Bilandic, 53 F.3d 789, 791 (7th Cir. 1995).
A. First Amendment
Plaintiffs contend that the Indiana Law violates the First Amendment because it burdens their right to assume municipal office once elected. Defendants respond that it is established law that requiring public employees to resign before running for еlected office does not violate the First Amendment. Thus, defendants contend that the less burdensome Indiana Law, which only requires resignation if the civil servant runs for office and wins, must be constitutional.
We agree with defendants that the Indiana Law falls squarely within the bounds of settled Supreme Court precedent upholding restrictions on the political activity of state employees. See Clements v. Fashing, 457 U.S. 957 (1982) (upholding the constitutionality of provisions of the Texas Constitution restricting the political activity of state employees, including by prohibiting a sitting judge from serving on the state legislature); Broadrick v. Oklahoma, 413 U.S. 601 (1973) (holding that Oklahoma may regulate the political activities of its state employees); U.S. Civil Serv. Comm‘n v. Nat‘l Ass‘n of Letter Carriers, 413 U.S. 548 (1973) (reaffirming United Pub. Workers of Am. v. Mitchell, 330 U.S. 75 (1947), which held that the Hatch Act‘s restrictions on a broad range of political activities by federal employees was constitutionally permissible). In fact, the Supreme Court has repeatedly upheld the constitutionality of “resign-to-run” laws, which forbid public employees from running for elected office. Clements, 457 U.S. at 971–72; Broadrick, 413 U.S. at 616–17; Letter Carriers, 413 U.S. at 556. As defendants point out, resign-tо-run laws place a greater burden on candidacy than the Indiana Law because the public employee who wishes to run for office must resign his or her employment in order to become a candidate. By contrast, under the Indiana Law, a civil servant is required to resign only if he or she is elected.
Plaintiffs argue in vain that, unlike resign-to-run laws, the Indiana Law implicates fundamental rights and thus deserves heightened scrutiny. They contend
At the outset, we agree with the district court that the right to assume or hold office once elected is not a fundamental right. It is well established that the right to be a candidate for office is not a fundamental right. Brazil-Breashears, 53 F.3d at 792. Like the other federal courts that hаve confronted this issue, we agree that there is “no palpable distinction” between a prohibition on running for office and a prohibition on holding office. Krisher v. Sharpe, 763 F. Supp. 1313, 1319 (E.D. Pa. 1991), aff‘d, 944 F.2d 897 (3d Cir. 1991); Fletcher v. Marino, 882 F.2d 605, 614 (2d Cir. 1989) (deeming “absurd” plaintiffs’ argument that “because they have been allowed to run for office they cannot now be prevented from taking office“).
We likewise reject plaintiffs’ alternative argument that the Indiana Law deserves heightened scrutiny because it burdens voters’ exercise of the franchise. The Supreme Court has acknowledged that laws affecting a candidate‘s access to the ballot implicate voters’ First and Fourteenth Amendment rights, and in some circumstances, desеrve a close look. But the “existence of ... barriers [to candidacy] does not of itself compel close scrutiny.” Bullock v. Carter, 405 U.S. 134, 143 (1972). To warrant a heightened level of scrutiny, the contested statute must significantly encroach upon the right to vote or a candidate‘s access to the ballot. See id. at 144 (closely scrutinizing a law requiring a hefty filing fee for candidates because of a “real and appreciable impact on the exercise of the franchise“); Anderson v. Celebrezze, 460 U.S. 780, 788–96 (1983) (striking down an Ohio law requiring independent presidential candidates to file a statement of candidacy nine months before the election because of its “substantial impact” on indepеndent-minded voters); cf. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (“Regulations imposing severe burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State‘s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.” (citation and internal quotation marks omitted)).
Here, the contested law has a negligible impact on voters. The Indiana Law does not exclude candidates from the ballot or bar would-be candidates from running for office. Cf. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 835 n.48 (1995) (observing that resign-to-run laws “plac[e] no obstacle between [a candidate] and the ballot or his nomination or his election. Hе is free to run and the people are free to choose him” (alterations in original) (citation and internal quotation marks omitted)); Clements, 457 U.S. at 971 (concluding that the resign-to-run provision‘s “burden on [plaintiffs‘] First Amendment interests in candidacy [was] insignificant“). The Indiana Law does no more than prohibit civil servants from holding elected office in the sаme body of municipal government that employs them. And unlike the resign-to-run laws that have been deemed constitutional, the Indiana Law allows a candidate to remain employed while taking a
For these reasons, heightened scrutiny is not appropriate. But this does not mean that a rational basis analysis governs the outcome. Rather, whether “a policy violates the First Amendment has been traditionally dependent upon a balancing test between the individual‘s First Amendment rights and the interests of the public body.” See Brazil-Breashears, 53 F.3d at 792 (internal quotation marks omitted). Thus, we must consider whether Indiana has imposed restrictions “that serve legitimate state goals,” and whether the state‘s interest outwеighs the burden on plaintiffs’ First Amendment rights. See Anderson, 460 U.S. at 788 n.9 (striking down a law that burdened the First Amendment rights of independent candidates and the voters who supported them that did not further a compelling state interest).
As plaintiffs acknowledge, Indiana has a genuine and compelling interest in avoiding corruption and self-dealing and the appearance оf such things. See Letter Carriers, 413 U.S. at 565 (“It is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.“); Brazil-Breashears, 53 F.3d at 792 (“The [law at issue] serves [a substаntial state] interest in that it enhances the efficiency of the workforce and prevents against actual, as well as the appearance of, impropriety.“); Wright v. DeArmond, 977 F.2d 339, 346 (7th Cir. 1992) (holding that “conflict-of-interest statutes ... address[] a problem of compelling importance to [a state‘s] capacity to govern justly: prevеnting political corruption or the appearance of corruption“). And it is obvious that allowing civil servants to serve on a legislative body with the authority to set their own compensation provides an opportunity for self-dealing and gives the appearance of possible corruption.6
In addition, as members of the legislative branch, plaintiffs would be tasked with evaluating laws affecting their departments, creating further conflicts of interest and opportunities for corruption. For example, a police officer considering an ordinance requiring police officers to wear body cameras could have an interest in the outcome of the vote that conflicts with that of the public. Of course, as the district court noted, it would be helpful to have the police officer‘s insight as to whether requiring body cameras is a worthwhile investment of resources, but “having input is different from being the final decision
On the other side of the balancing test, the burden on plaintiffs’ First Amendment rights is slight. Cf. Clements, 457 U.S. at 971–72 (explaining that resign-to-run laws amount to a “de minimis interference with [individuals‘] interests in candidacy“). Again, plaintiffs are not forbidden from holding public office; if they decide not to run or retain their elected positions, that is their choice. Although plaintiffs will suffer a non-negligible economic consequence if they do not resign from elected office, it is settled law that this consequence is permissible under the First Amendment. See id. at 972; Letter Carriers, 413 U.S. at 556; see also Davenport v. R.R. Ret. Bd., 453 F.2d 185, 188 (5th Cir. 1972) (holding that requiring an alderman to choose between serving in office and collecting an annuity does not impose an unconstitutional condition on his privilege to seek and hold office).
Moreover, the Indiana Law contains no other restraints on the political activity of civil servants, which is an “extra reason to find the [Law] consistent with the Constitution.” Wilbur v. Mahan, 3 F.3d 214, 220 (7th Cir. 1993) (Easterbrook, J., concurring). If plaintiffs wish to run for office in a government unit other than the one that employs them, or participate in campaigns for candidates they favor, they are free to do so. By contrast, the resign-to-run laws at issue in Broadrick and Letter Carriers contained additional prohibitions on a broad range of political activities by government employees yet were deemed constitutional. Broadrick, 413 U.S. at 617–18; Letter Carriers, 413 U.S. at 556.
In sum, because the Indiana Law imposes a small burden on plaintiffs’ First Amendment rights, and any burden is outweighed by Indiana‘s compelling interest in avoiding corruption by public officeholders and the appearance of the same, the district court did not err in dismissing plaintiffs’ First Amendment challenge.
B. Fourteenth Amendment
Plaintiffs also contend that the Indiana Law violates the Equal Protection Clause of the Fourteenth Amendment. They challenge the Law‘s disparate treatment of civil servants as compared to private government contractors. Plaintiffs point out that both civil servants and government contractors derive a financial benefit from the government unit employing them, but only civil servants are subject to the Indiana Law. Plaintiffs again claim they are entitled to strict scrutiny review.
Yet, plaintiffs are not members of a suspect class and, as explained above, the right to assume office is not a fundamental right; thus, the Indiаna Law need only survive rational basis review. See Brazil-Breashears, 53 F.3d at 793. Under rational basis analysis, the disparate treatment need only be rationally related to a legitimate governmental purpose to survive plaintiffs’ challenge. Clements, 457 U.S. at 963.
The Indiana Law surely passes muster under rational basis review. There is a clear, rational relationship bеtween preventing actual and perceived corruption and Indiana‘s treatment of municipal employees. Although government contractors who hold elected office could use their voting power to enrich themselves at the expense of the public, Indiana subjects government contractors to extensive disclosure requirements, which reduces the risk of self-dealing. And even if the risk of
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.