Thornton v. Barnes

EASTERBROOK, Circuit Judge,

concurring.

Indiana supplies all of the process due for any misstep by the Mayor. This conclusion, in Part II.B.2 of the court’s opinion, makes it unnecessary to resolve antecedent questions. Everything in Part II.B.l of the opinion is dictum. We should do exactly as in Easter House v. Felder, 879 F.2d 1458, 1466 (7th Cir.1989) (en banc), the basis of Part II.B.2, and say that whether or not the plaintiff has established a property interest, he must lose because the state supplies process. Although dictum has its place, this is not one of them. Part II.B.l covers two subjects: the interpretation of Indiana’s rules establishing tenure of office for members of the Gary Airport Authority, and the extent of “property” in a public office. The first of these involves the allocation of authority within a different sovereign, something we should leave to that polity if at all possible. The second involves an unresolved question of federal law, on which the majority is at odds with both language in earlier opinions of this court and the approach prevailing in other courts. Dictum sometimes lights the way to improvements in the law or clarifies tangled strands of doctrine. By contrast, the majority’s detour is meddlesome to the extent it tells Indiana the meaning of its own law and misleading to the extent it discusses constitutional law. I therefore do not join Part II.B.l.

Indiana established the office the plaintiffs hold, and its law governs their tenure. Whether the Mayor, as opposed to the legislature, may remove the commissioners is a question about the allocation of powers within Indiana. Cf. United Beverage Co. v. Indiana Alcoholic Beverage Commission, 760 F.2d 155 (7th Cir.1985). State courts should answer this question, my colleagues say in Part II.B.2. Why, then, do we do so ourselves in Part II.B.l? There is no need to decide who within Indiana is charged with the responsibility of removing commissioners and two good reasons not to. First, that question would be the main event of the quo warranto action we invite the plaintiffs to bring. Under the law of issue preclusion, what we say about the Mayor’s powers vis-a-vis those of the legislature will not bind the state court, because only issues “necessarily” decided in the first case are foreclosed. McBurnie v. Seaton, 111 Ind. 56 , 12 N.E. 101 (1887); Peterson v. Culver Educational Foundation, 402 N.E.2d 448, 461 (Ind.App. 1st Dist.). Second, it is singularly inappropriate for a federal court to tell state officials that they do not understand the legal rules governing the state’s own organization. “[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how *1391 to conform their conduct to state law”, Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106 , 104 S.Ct. 900, 911 , 79 L.Ed.2d 67 (1984), which is exactly what Part II.B.1 does. See also Huggins v. Isenbarger, 798 F.2d 203, 207-10 (7th Cir.1986) (concurring opinion).

Sometimes federal courts must resolve questions of state law in order to identify “property”. Board of Regents v. Roth, 408 U.S. 564 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972). Property, as states define it, may not be snatched away without process, as the federal courts require it. Cleveland Board of Education v. Loudermill, 470 U.S. 532 , 105 S.Ct. 1487 , 84 L.Ed.2d 494 (1985). We needn’t work through state law to identify “property”, given the conclusion that the state supplies enough process. Indeed, we shouldn’t even think of this as a due process case. Plaintiffs do not say that the Mayor fired them without hearing them out; they say that the Mayor had no authority to fire them. Mayor Barnes could have given the plaintiffs nonstop hearings without altering the nature of their grievance. If the Mayor may sack the commissioners, he may do so without process (for the Mayor’s subordinates, like the President’s cabinet officers, lack tenure); if the Mayor lacks authority to fire them, the process he supplies is irrelevant. So the commissioners’ claim is substantive, not procedural. Not even that oxymoron “substantive due process” describes this position; it is one of a substantive interest under state law. Due process is just their entree to federal court, and a weak one. Violation of state law is not denial of due process. Archie v. City of Racine, 847 F.2d 1211, 1216-18 (7th Cir.1988) (en banc). The plaintiffs’ two-step — because the defendant can’t fire me at all, I have a legitimate claim of entitlement to my job; because this entitlement was abridged without hearings my discharge violated the Constitution — converts violations of state law into constitutional offenses. Archie , following an unbroken line of cases in the Supreme Court, holds that this maneuver fails.

Discussing constitutional law without considering this difficulty, the majority says that the position of airport commissioner is “property” even though uncompensated. Although Jungels v. Pierce, 825 F.2d 1127, 1130 (7th Cir.1987), found “appealing” the contention that unremunerat-ed public offices are not “property” for purposes of the Due Process Clause, the majority replies that “[w]e live, fortunately, in a country where service to one’s country and state is not measured simply in terms of financial remuneration.” Op. 1388. In other words, an unpaid job may be important to the populace and the incumbent. “[TJhere are other factors that must be weighed, including powers and responsibilities.” Id. at 1388. From this my colleagues conclude that the plaintiffs hold “property” interests in their jobs.

Perhaps the Supreme Court should have created a jurisprudence in which the importance or gravity of an interest defines “property”; several Justices have championed that cause. Persistent majorities have taken a different approach, however. Roth, 408 U.S. at 570-71 , 92 S.Ct. at 2705-06 , holds that the nature rather than the weight of the interest governs. “Weight” comes into play in deciding what process is due but is not a reason a particular interest qualifies as property. Even decisions that deprive people of very important things fall outside the domain of “property”. Roth illustrates this well, as do many more cases. E.g., Meachum v. Fano, 427 U.S. 215 , 96 S.Ct. 2532 , 49 L.Ed.2d 451 (1976). On the other hand trifles such as the hobby kit in Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 , 106 S.Ct. 662 , 88 L.Ed.2d 662 (1986), qualify as “property” if their holders have legitimate claims of entitlement — that is, interests depending on substantive criteria. See also, e.g., Kentucky Department of Corrections v. Thompson, — U.S. -, 109 S.Ct. 1904 , 104 L.Ed.2d 506 (1989).

Jungels and the majority alike send us down the wrong path to the extent they suggest that the answer to the question “Is this job property?” depends on its importance, measured by salary or duties or public esteem. The initial question is whether there is a legitimate claim of entitlement, *1392 dependent on substantive criteria. If there is such a claim, we must ask: in whatl What, particularly, is the “property” in a public job? Is it the emoluments of the office, the official power of the office, or the honor of it all? That depends in turn on what the person holds against public claims. A contract may give me a right to occupy an office and receive a salary, or it may give me Blackacre. I hold Blackacre against claims made by the state and fellow citizens, and in this same sense I also hold the income stream of the office. “Honor” and public esteem are not property, we know from Paul v. Davis, 424 U.S. 693 , 96 S.Ct. 1155 , 47 L.Ed.2d 405 (1976). That leaves the powers of the office. Do I “own” a public office as private “property”?

A position on Gary’s Airport Authority is the entitlement to exercise governmental power, to bind the sovereign (that is, one’s fellow citizens). Governmental powers are not private property; they do not exist independently of the government; they are not secured against governmental interference. They are aspects of government, integral to it rather than claims against it. An attribute of a state’s sovereignty can’t sensibly be secured to private hands against governmental deprivation. Cf. Stone v. Mississippi, 101 U.S. 814, 820 , 25 L.Ed. 1079 (1880) (“[T]he power of governing is a trust committed by the people to the government, no part of which can be granted away.... The contracts which the Constitution protects are those that relate to property rights, not governmental.”).

Suppose Indiana had rearranged things so that the Gary Airport Authority had nothing to do, and Mayor Barnes received all of the powers formerly wielded by the Commissioners. Or suppose Mayor Barnes simply found a way around the Authority. In either case the Commissioners’ offices would be empty shells. Would we say that eliminating the duties of the office while leaving the Commissioners in place deprived them of property?

Suppose Indiana paid members of the Airport Authority $50,000 per year, and the Mayor fired them with one year to go on their terms. If the “office” is an aspect of property distinct from the stipend, then the remedy should be restoration to office plus back pay. Undoubtedly we would say, however, that the remedy is $50,000, leaving Indiana to choose for itself who shall sit on the Airport Authority. Contracts of employment are not enforced by specific performance. Anyway, if that remedy were available for special jobs (the writ of quo warranto may allow these plaintiffs to reclaim their offices), a remedy for breach of contract is not itself “property”.

If Indiana fired a Commissioner with a year to go and tendered $50,000, there would be no federal remedy at all. Roy-ster v. Board ofTrusteeSj 774 F.2d 618 (4th Cir.1985). A school board fired the superintendent of schools without a hearing but paid the superintendent his full salary for the contract term. He demanded restoration to office, and Royster held that there was no property right in the office as opposed to its salary. An Airport Commissioner who draws no salary is in the same position as a school superintendent or football coach who has been paid his full salary: the government has paid him everything due, posing the question whether there is a separate property interest in the office. Royster says no, soundly, grounding its decision on constitutional principles independent of the particular terms of Roy-ster’s contract. 774 F.2d at 621 & n. 2. An officeholder whose salary is zero is not on that account the holder of a greater interest in the office than is an appointee whose salary has been paid in full. In either case, the money damages are nil, and there is no property interest in the office, as opposed to its emoluments.

Several other lines of authority suggest that no one holds a policy-making office as a private interest enforceable against the state. Consider Branti v. Finkel, 445 U.S. 507, 517-20 , 100 S.Ct. 1287, 1294-96 , 63 L.Ed.2d 574 (1980), and Elrod v. Burns, 427 U.S. 347 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976), saying that the government may dispatch policy-making employees on the basis of their speech. Costs to interests secured by the First Amendment, the Court believes, do not justify foisting policymak-ing officials on unwilling states. Ambach *1393 v. Norwich, 441 U.S. 68 , 99 S.Ct. 1589 , 60 L.Ed.2d 49 (1979), holds that states may-reserve for citizens positions that entail the execution of discretionary powers of government, a decision showing that the office is not simply the employee’s property. Sampson v. Murray, 415 U.S. 61 , 94 S.Ct. 937 , 39 L.Ed.2d 166 (1974), concludes that a court generally should not treat deprivation of public employment as irreparable injury. Wiener v. United States, 357 U.S. 349 , 78 S.Ct. 1275 , 2 L.Ed.2d 1377 (1958), a cousin to our case because it held that the President could not fire a member of the War Claims Commission before the expiration of his term, is revealing because of the remedy: back pay, not restoration to office — a remedy Wiener did not even request. Any of these lines of cases may be distinguished without undue difficulty, but together they show considerable reluctance to treat an opportunity to make policy on behalf of doe government as something secured against the government.

I know of no precedent for the proposition that a policy-making office, as opposed to its stipend, is “property” protected by the Due Process Clauses. My colleagues have not found a case to support them. They cite instead National League of Cities v. Usery, 426 U.S. 833, 850-51 , 96 S.Ct. 2465, 2473-74 , 49 L.Ed.2d 245 (1976), which interprets the Commerce Clause and is irrelevant to our problem. If we are to opine on a subject immaterial to the outcome of this case, we ought to have a basis firmer than an overruled case construing a different part of the Constitution. Royster is at odds with the majority’s approach; the body of constitutional law is at odds with it. The question is open for initial decision when its resolution affects the outcome.