Robert Alan TARPLEY, Plaintiff-Appellant, v. Frank KEISTLER, Jr. and Union County Republican Central Committee, Defendants-Appellees.
No. 98-2369.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 22, 1999. Decided Aug. 13, 1999.
188 F.3d 788
Bruce Stratton, Stratton & Nardulli, William F. Moran (argued), Stratton, Stone, Kopec & Sturm, Springfield, IL, for Keistler, Jr.
Bruce Stratton (argued), Stratton & Nardulli, William F. Moran, III, Stratton, Stone, Kopec & Sturm, Springfield, IL, for Union County Republican Central Committee.
CUDAHY, Circuit Judge.
For a quarter century now, well-meaning Illinois citizens periodically have turned to the courts in attempts to rid the state of an age-old rite: rewarding political supporters with the spoils of power, notably, but not exclusively, public employment. See, e.g., O‘Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996); Rutan v. Republican Party of Ill., 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Shakman v. Democratic Org. of Cook County, 569 F.Supp. 177 (N.D.Ill.1983). Despite these efforts, patronage hiring is alive and well in Illinois. See Cynthia Grant Bowman, THE LAW OF PATRONAGE AT A CROSSROADS, 12 J.L. & POL. 341, 356-58 (1996). In this case, Robert Tarpley takes on the patronage machine. He mounts yet another challenge to yet another scheme designed by the party in power to hire workers who share its political convictions. We considered his claims once before, leaving open some possibility of victory. See Tarpley v. Jeffers, 96 F.3d 921 (7th Cir.1996). This time, Tarpley‘s effort is again gallant, but falls short. We affirm the district court‘s order granting summary judgment to the defendant.
I.
The facts of the case have not changed since the first time we considered it. See id. at 925-27. We recite them again here for ease of reference.
In 1990, the Supreme Court decreed that the use of political party affiliation as a criterion for public employment violates the First Amendment unless, generally speaking, the job involves some element of policy-making. See Rutan, 497 U.S. at 74-76, 110 S.Ct. 2729. In response, the then-Governor of Illinois, Jim Thompson, issued orders requiring the state to base all hir-
The Choate Mental Health Center, a state-operated hospital located in Union County, employed two power plant maintenance workers. In spring 1992, following the death of one and the promotion of the other, Choate sought to fill both vacancies on a permanent basis. The Department of Mental Health, which managed Choate, authorized Choate to fill the positions on a temporary basis only. Keistler got wind of the temporary vacancies and called Natalie Bales, a Department of Mental Health personnel officer, to recommend for one of the jobs Harold Blessing, a Republican precinct worker. Keistler also spoke with Janice Cellini in the Governor‘s Office of Personnel about Blessing‘s interest in the position. Following the normal procedures used to fill all vacancies, Bales called her contact in the Governor‘s office (not Cellini) about the Choate position and was given Blessing‘s name. Bales then forwarded Blessing‘s information to Alice Kerns, the personnel officer at Choate. Blessing started work four days later. No interviews were conducted for the temporary position, and it was not publicized in any way.
Later that year, the Department made the maintenance positions permanent. Neither the Department nor Choate (nor any other state agency) advertised the job. Blessing and eight others, including Tarpley, interviewed for the position. Blessing got the job, at least in part because he had gained valuable experience during his months as a temporary employee in the same position.1
Tarpley sued under
On remand, the district court determined that Tarpley had standing. Keistler
Tarpley again appeals. We review the district court‘s grant of summary judgment de novo, using the same standards as the district court and viewing the evidence in the light most favorable to the non-moving party. See, e.g., Sheik-Abdi v. McClellan, 37 F.3d 1240, 1243 (7th Cir.1994). Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See
II.
Section 1983 provides in pertinent part that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and law, shall be liable to the party injured in an action at law.”
State action is not limited to the conduct of state officials; the conduct of private parties can, under certain circumstances, constitute state action. The Supreme Court has articulated a number of tests to determine whether a private party should be considered a state actor. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (listing various tests). All of the tests, despite their different names, operate in the same fashion: “Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); see also Dunham v. Frank‘s Nursery & Crafts, Inc., 919 F.2d 1281, 1284 (7th Cir.1990).
Several factual scenarios already considered by the Supreme Court are particularly instructive in the matter at bar. Injured parties can attempt to prove that a private party conspired with state actors to deprive them of their constitutional rights. In Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), for example, a white school teacher alleged that a restaurant had conspired with the local police to deny her service in
Keistler believes that this Court has already addressed the exact situation presented by this case and accordingly2
argues without much elaboration—his brief contains only seven sentences of argument—that the district court correctly relied upon Vickery. That case is remarkably similar to this one. Illinois County Republican chairpersons recommended candidates for temporary highway maintainer positions, and Vickery received one of the temporary appointments during his brother‘s tenure as a chairman. When a new chairman took over, Vickery was not re-appointed. He sued several state actors as well as Republican Party officials “alleging that his failure to be appointed to a temporary highway maintainer position violated his rights....” Vickery, 100 F.3d at 1336. The district court dismissed the case against the party defendants for failure to state a claim upon which relief could be granted. Vickery appealed, and this Court affirmed. We held that “[i]f the action prohibited under Rutan is the hiring, promoting, transferring or recalling of an individual based on his or her political association, since the Party Defendants did not hire, promote, transfer, or recall anyone, their screening or recommending the hiring of employees for highway maintainer positions is not the same as being jointly engaged with state officials in the prohibited action.” Id. at 1344 (quoting Adickes, 398 U.S. at 152, 90 S.Ct. 1598). Employing the analysis articulated in Tarkanian, we further found that “[p]hone calls whereby the Party Defendants made suggestions as to the filling of temporary positions simply do not suffice to satisfy [the state action requirement], for it is uncontroverted that the Party Defendants had no actual hiring authority and did not make the actual employment decision.” Id. at 1345.
Here, Tarpley distinguishes his case from Vickery‘s, asserting that he has produced probative evidence which suggests that the state conspired with Republican Party officials. Tarpley next complains, however, that Keistler‘s reading of Vickery would appear to bar the pursuit of conspiracy cases against private parties. To the extent that Vickery can be read to foreclose a plaintiff from pursuing a § 1983 case against a private party based on a conspiracy theory, it directly conflicts
with the time-tested holdings of Adickes and Dennis. Those cases remain vibrant law, see, e.g., Bowman v. City of Franklin, 980 F.2d 1104, 1107 (7th Cir.1992); Briscoe v. LaHue, 663 F.2d 713, 722-23 (7th Cir.1981), and Tarpley is free to pursue his theory of conspiracy.
And he has produced some evidence from which a jury might conclude that the party defendants conspired with the state. Keistler attended meetings with state employees, including representatives of the Governor‘s office; he spoke with the Governor‘s office about Blessing‘s interest in the position; and he spoke with his Department personnel contact, who relayed Blessing‘s name to the Governor‘s office. The Governor‘s office forwarded only one candidate‘s name—Blessing‘s—to the Choate personnel officer with ultimate hiring authority, Alice Kerns. No other candidates were suggested. A jury might conclude from this evidence that Keistler‘s recommendation defined and limited the pool of candidates considered by the state to fill the temporary vacancy. The state simply rubber-stamped his picks, a jury might believe. Thus, Tarpley‘s evidence could suggest that the state embraced Keistler‘s recommendations, transforming them into state action and making Keistler a state actor for purposes of § 1983.
If these were the only relevant considerations, we might be inclined to reverse the district court‘s grant of summary judgment. We need not reach that difficult determination, however, because there are other legal issues to consider. Tarpley claims that his First Amendment right to political association was violated by Keistler‘s recommending Blessing to the Department and the Governor‘s office. But Keistler‘s actions constitute an exercise of his own First Amendment right to petition the government, a fact we must take into account. We believe that what Tarpley characterizes as a conspiracy is more accurately and more commonly known as politi-
The First Amendment provides that the government cannot abridge the right of the people to “petition the Government for a redress of grievances.”
Although originally applied to provide immunity from antitrust prosecution, the Noerr-Pennington cloak of protection has been extended to cover other areas of law, including claims under § 1983. See Nickum v. Village of Saybrook, 972 F.Supp. 1160, 1171 (C.D.Ill.1997) (collecting cases). For example, in Video Int‘l Prod., Inc. v. Warner-Amex Cable Communications, 858 F.2d 1075 (5th Cir.1988), Video International Productions (VIP) sued Warner-Amex Cable (WAC) and the City of Dallas alleging that they had conspired to manipulate zoning ordinances in order to force VIP out of business. VIP had installed several satellite dishes at large apartment complexes and strung cables to connect “neighboring but separately owned apartment complexes.” Id. at 1078. The City subsequently awarded the sole cable franchise to WAC, which immediately began agitating for the City to interpret certain zoning ordinances so as to prohibit VIP from stringing cables across property lines. Intense lobbying eventually resulted in violation notices being issued to the apartment complexes. VIP sued WAC for antitrust and § 1983 violations, as well as tortious interference with contract. The court held that the Noerr-Pennington doctrine shielded WAC from antitrust and tort liability. Id. at 1082-84. “The section 1983 claim presents more difficulty” because it “protects constitutional rights,” the court stated, “so our reasoning must involve a more careful balancing of interests.” Id. at 1084. The court continued:
We think that if Noerr-Pennington is to have its intended effect at all, an analysis of whether the petitioner is a co-conspirator under section 1983 must parallel the co-conspirator exception with Noerr-Pennington. This conclusion is fully consistent and consonant with the language of the Supreme Court
in Dennis.... Otherwise, first amendment petitioning could be challenged in the section 1983 context as a denial of equal protection, a taking of property without just compensation, a first amendment violation, or other constitutional claim, thus vitiating Noerr-Pennington protection. Further, we believe that the equation of section 1983 state action with the Noerr-Pennington co-conspirator exception sufficiently guards those constitutional rights that section 1983 serves to protect.
Id. at 1084.5 Relying on similar reasoning, other courts have also applied Noerr-Pennington immunity to § 1983 conspiracy cases against private parties. See, e.g., Eaton v. Newport Bd. of Educ., 975 F.2d 292, 298-99 (6th Cir.1992); Evers v. County of Custer, 745 F.2d 1196, 1204 (9th Cir.1984); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607, 614-15 (8th Cir.1980); see also Stern, 547 F.2d at 1342-43 (applying Noerr-Pennington immunity to a civil rights conspiracy case brought under
We find this rationale persuasive under the particular facts presented here. Government hiring on the basis of political affiliation is one thing; Rutan and other cases embrace the First Amendment right of political association and accordingly limit this practice. Recommending that the government hire someone (of, perhaps, the same political affiliation) is altogether different because the act of recommending implicates another First Amendment right—the right to petition. Thus, before circumscribing this practice, we must balance the competing constitutional concerns. On the one side is Tarpley‘s assert-
ed right of freedom of political association; on the other is Keistler‘s right to petition the government for action favorable to his interests. In this case, Tarpley may not be accorded a remedy that stifles Keistler‘s right.
Most importantly, Keistler exercised a paradigmatic First Amendment right. Making suggestions about whom to hire is a traditional form of political activity. Since the Founding, politically-minded citizens have attempted to convince the government to hire people of similar political ilk. See Cynthia Grant Bowman, “WE DON‘T WANT ANYBODY SENT:” THE DEATH OF PATRONAGE HIRING IN CHICAGO, 86 Nw. U.L. REV. 57, 59-62 (1991); see also Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60 (1803). This is, of course, what Keistler was doing. He was simply playing politics—doing what Tarpley can also do—by exercising his constitutionally-protected right to petition the government. The record suggests that Keistler‘s intent was exclusionary in the sense that he wanted a Republican loyalist—indeed, a Republican loyalist of his picking—to fill the temporary power plant positions at Choate. The evidence even suggests that the Edgar Administration actively sought out such recommendations. But, “[t]hat a private party‘s political motives are selfish is irrelevant....” City of Columbia, 499 U.S. at 380, 111 S.Ct. 1344. Advocacy is inherently partisan, and the First Amendment guarantees freedom of such partisanship, at least in the form of political speech. Keistler was just an old-timer engaged in an old-time political activity at the core of rights protected by the First Amendment.
Further, the contours of Tarpley‘s asserted right to associate are circumscribed in part by the scope of Keistler‘s right to
In effect, Tarpley asks us to vindicate his First Amendment rights at the expense of Keistler‘s. This we decline to do.7 Section 1983 claims, as much as the antitrust laws, are not appropriate vehicles for proscribing traditional political activity such as attempts to persuade public officials. See City of Columbia, 499 U.S. at 380, 111 S.Ct. 1344; Stern, 547 F.2d at 1344. Other contexts may dictate different results, and First Amendment protections would not necessarily extend to cases where the attempt itself (rather than the intended result) created the alleged harm. In addition, where political speech is not at stake, First Amendment protection of conspiratorial speech might be very limited. We believe that these important distinctions “sufficiently guard[] those constitutional rights that section 1983 serves to protect.” Video Int‘l Prod., 858 F.2d at 1084.
In this case, political speech of a well-recognized genre is at stake, and we will not allow a claim of conspiracy to undermine it.8 “We are loathe to interpret sec-
III.
Tarpley tells a somewhat compelling tale of political scheming to circumvent the constitutional requirements for hiring public employees. He does have a First Amendment right not to be excluded from this public job because of his political beliefs. But the action he complains of here—another citizen‘s recommending an acquaintance for public employment—is protected by the First Amendment‘s right to petition clause. We therefore AFFIRM the district court‘s order granting summary judgment for the party defendants.
RIPPLE, Circuit Judge, dissenting.
Had Frank Keistler simply written to the governmental hiring authorities and advocated the hiring of someone other than Mr. Tarpley, there would be no doubt that his action would be protected under the First Amendment. See Vickery v. Jones, 100 F.3d 1334, 1344 (7th Cir.1996), cert. denied, 520 U.S. 1197, 117 S.Ct. 1553, 137 L.Ed.2d 701 (1997). Indeed, had Frank Keistler orchestrated a massive letter writing campaign among his fellow party members to pressure governmental hiring authorities to take on someone other than Mr. Tarpley, his advocacy would be protected under the First Amendment by extending the Noerr-Pennington doctrine1 to § 1983 actions such as this one. See, e.g., Eaton v. Newport Bd. of Educ., 975 F.2d 292 (6th Cir.1992), cert. denied, 508 U.S. 957, 113 S.Ct. 2459, 124 L.Ed.2d 674 (1993).
dissent‘s embrace of Vickery (see infra at p. 797), the holding of which we believe is inconsistent with the result it seeks to achieve. See supra at pp. 792-93.
Nonetheless, the dissent would have a jury draw the line between constitutionally-protected advocacy and simple conspiracy. The constitutional directive is too insistent, and Tarpley‘s evidence insufficiently probative of a conspiracy, to allow this case to go to a jury. As we have explained, on this record we think that the line is already clear and that Tarpley‘s evidence falls short.
As my colleagues point out, however, neither of these factual predicates can be accepted as true for the purpose of deciding whether the district court should have granted summary judgment on this record. Rather, as my colleagues also note, the record, as presently constituted, contains sufficient evidence to permit a jury to conclude that Mr. Keistler and other party officials actually conspired with representatives of the Governor‘s office to define and limit the pool of candidates to fill the temporary vacancy. Indeed, as my colleagues suggest, the record, as presently constituted, will support a jury determination that state officials, as part of that conspiracy, simply rubber-stamped the selections of the party officials. If a jury accepted this version of the evidence, as we must accept it now for purposes of deciding the correctness of this summary judgment ruling, the First Amendment would provide no protection for Mr. Keistler‘s participation in a conspiracy with state officials to deprive a citizen of his freedom of association. See Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
My colleagues’ analysis attempts to avoid this stark reality by “balancing” (see ante at p. 795) Mr. Keistler‘s First Amendment rights against those of Mr. Tarpley. That balancing is resolved, according to my colleagues, by determining that Mr. Keistler‘s freedom trumps that of Mr. Tarpley. This is the appropriate balance, my colleagues urge, because Mr. Keistler is exercising the “paradigmatic” First Amendment right to petition the government. (See ante at p. 795.)
My colleagues characterize those who bring lawsuits such as this one as “well-meaning ... citizens” who are trying to “rid the state of an age-old rite.” (See ante at p. 789.) In reality, however, Mr. Tarpley and others who seek vindication of the right to serve their state without the endorsement of the prevailing political leadership are seeking something far more important—the vindication of a right of freedom of association recognized by the highest court in the Land as part of our First Amendment freedom. My colleagues note that an individual may seek redress against a conspiracy by private citizens and state officials to deprive that individual of any other civil right. They leave unanswered a crucial question: Why should the associational right, an integral part of First Amendment protections and yet, according to my colleagues, treated with massive resistance in many quarters within our jurisdiction (see ante at p. 789-90), be protected any less vigorously by this court? After today‘s decision, this question will haunt the jurisprudence of this circuit.
Accordingly, I respectfully dissent.
Notes
It appears that the dissent would have us promote the right of political association as an end in itself, as if Tarpley were interested in being a Democrat so that he could carry a card, or perhaps wear a T-shirt, announcing his affiliation. But the right of association has some content. People who associate, especially those who enter the political fray, have grander, even if selfish, aspirations: they want to speak, assemble, petition or publish in support of something. See THE FEDERALIST NO. 10 (James Madison). Political association would be an empty right indeed if partisans were not free to advocate. Thus, the right of political association is integral to republican government: “The constitutional right of association ... stemmed from the Court‘s recognition that effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.” Buckley v. Valeo, 424 U.S. 1, 15, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (internal quotation and citation omitted). So, far from belittling the right to political association, we think that we are promoting its vibrancy.