Illinois State Employees Union, Council 34 v. Lewis

KILEY, Circuit Judge

(dissenting).

I respectfully dissent.

No case decided by this court, and none relied upon by the majority, is a precise precedent for the holding of the majority that plaintiffs’ 1 discharges for partisan political reasons were constitutionally “impermissible.” The Second Circuit in Alomar v. Dwyer, 447 F.2d 482 (2nd Cir. 1971), holds to the contrary. The majority opinion’s disavowal of Alomar is based upon footnote 9 in Board of Regents v. Roth, 408 U.S. 564 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972), which the majority thinks laid to rest the “premise” in Bailey v. Richardson, 86 U.S.App.D.C. 248 , 182 F.2d 46 (1950), aff’d, per curiam, 341 U.S. 918 , 71 S.Ct. 669 , 95 L.Ed. 1352 (1950), upon which the court in Alomar relied in deciding that “the sole protection for government employees who have been dismissed for political reasons must be found in civil service statutes or regulations.” Alo-mar, supra 447 F.2d at 483 , Judge Campbell’s concurrence implies that the Supreme Court has not, at least not yet, indicated any disagreement with the Alo-mar decision. In my opinion the Alomar court’s decision on the First Amendment issue before it is unaffected by what is said in the Supreme Courts footnote 9 in the Roth decision.

I am persuaded by the decision in Alomar . In my opinion, the district court, in the case now before us, did not err in deciding as a matter of law that plaintiffs’ First Amendment right of “free political association” was not violated by their discharge by the defendant.

The majority opinion’s asserted “demise” of Bailey in my view has no foundation in the Roth footnote. Justice Stewart’s comments in footnote 9, considerations essential to Roth , are directed to the procedural due process decision, not to the First Amendment decision, in Bailey. He broadens the scope of the footnote by quoting Justice Black-mun’s remark in Graham v. Richardson, 403 U.S. 365, 374 , 91 S.Ct. 1848 , 29 L.Ed. 2d 534 (1971), that the Supreme Court “now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a ‘right’ or as a ‘privilege.’ ” In addition to Graham , Justice Stewart cites Shapiro v. Thompson, 394 U.S. 618 , 627 n. 6, 89 S.Ct. 1322 , 22 L.Ed.2d 600 (1969), as an example of an equal protection case where the “right” v. “privilege” doctrine has been rejected; Mor-rissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972), Bell v. *580 Burson, 402 U.S. 535 , 91 S.Ct. 1586 , 29 L.Ed.2d 90 (1971), and Goldberg v. Kelly, 397 U.S. 254 , 90 S.Ct. 1011 , 25 L.Ed. 2d 287 (1970), due process cases supporting the theory of Roth; and Pickering v. Board of Education, 391 U.S. 563 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 (1968), and Sherbert v. Verner, 374 U.S. 398 , 83 S.Ct. 1790 , 10 L.Ed.2d 965 (1963), the cases most germane to this appeal because they involve First Amendment claims.

In the two First Amendment cases the Supreme Court circumvented the “right” v. “privilege” theory upon a doctrine described by Professor William Van Al-styne as “The Doctrine of Unconstitutional Conditions.” 81 Harv.L.Rev. 1439, 1445-1449. That doctrine in essence forbids the government from imposing conditions on government employment which would require the employee to surrender a right which he would be entitled to exercise as a private citizen. It is the implementation of the doctrine that results in the “rejection” of the “right” v. “privilege” dichotomy where First Amendment issues are involved.

The unconstitutional conditions doctrine has what Professor Van Alstyne calls a “basic flaw”:

The basic flaw in the doctrine is its assumption that the same evil results from attaching certain conditions to government-connected activity as from imposing such conditions on persons not connected with government. In many cases this may be true, but the connection with the government may in certain circumstances make otherwise unreasonable conditions quite reasonable. 81 Harv.L.Rev. at 1448.

It is this “flaw” that is implicitly recognized in Bailey’s discussion of the First Amendment claim and which is implicitly acknowledged in Alomar . It was the First Amendment decision in Bailey, not the procedural due process decision, which the Second Circuit relied upon in rejecting the claim of Daisy Alomar that she had been discharged in violation of her associational right: “It is next said that the appellant’s dismissal impinged upon the rights of free speech and assembly protected by the First Amendment, since the dismissal was premised upon alleged political activity * * * But the plain hard fact is that so far as the Constitution is concerned there is no prohibition against the dismissal of Government employees because of their political beliefs, activities or affiliations.” Alomar v. Dwyer, 447 F.2d 482, 483 (2nd Cir. 1971), citing Bailey v. Richardson, 86 U.S.App.D.C. 248 , 182 F.2d 46, 59 (1950), aff’d, per cur-iam, 341 U.S. 918 , 71 S.Ct. 669 , 95 L. Ed. 1352 (1950).

. Plaintiffs were non-civil service employees specifically exempt from the Illinois Personnel Code. See Sm.Hurd Ann.Stat. eh. 127, § 63bl04c(2) (Cum.Supp.1972).