# Cynthia Rutan v. Republican Party of Illinois

> Court of Appeals for the Seventh Circuit · February 16, 1989 · 868 F.2d 943

URL: https://www.frixlaw.com/law-library/cases/9478743

## Case

- **Full name:** Cynthia RUTAN, Et Al., Plaintiffs-Appellants, v. REPUBLICAN PARTY OF ILLINOIS, Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** February 16, 1989
- **Citations:** 868 F.2d 943; 4 I.E.R. Cas. (BNA) 445; 13 Fed. R. Serv. 3d 175; 1989 U.S. App. LEXIS 2186; 1989 WL 14925
- **Precedential status:** Published
- **Opinion:** Concurrence by Cudahy
- **Judges:** Bauer, Cummings, Cudahy, Posner, Coffey, Easterbrook, Ripple, Manion, Kanne
- **Cited by:** 90 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9478743

## How later opinions describe it (automated extraction)

- holding that even though a district court erroneously failed to address a class action issue it still issued a final order when it dismissed the suit because it left nothing to be decided

## Opinion text

CUDAHY, Circuit Judge,
concurring in part and dissenting in part:
With respect to the patronage hiring claim of James Moore, I agree with the result reached by the majority though not necessarily with all the reasoning. It seems to me that removing politics from the dispensation of government jobs is too daunting a task even for such all-purpose problem-solvers as the federal courts. At least the task should not be undertaken without some clearer signal from the Supreme Court. How to square this conclusion with the extensive first amendment jurisprudence which has grown up around political discharges is an even more daunting challenge, although LaFalce v. Houston, 712 F.2d 292 (7th Cir.1983), cert. denied, 464 U.S. 1044 , 104 S.Ct. 712 , 79 L.Ed.2d 175 (1984), may point the way — at least for the time being. Patronage hiring practices are of great antiquity. There may be some good in them in some circumstances but, most importantly, rooting them out is something the federal courts could not accomplish without incurring staggering and, I should think, clearly disproportionate costs. The patronage hiring practices involved here seem unvarnished and redolent of another era. They could, however, be dealt with by a properly designed civil service system. This is not a job for the federal courts — yet.
With respect to unfavorable personnel actions falling short of discharge involving *959 existing employees, I agree with Judge Ripple and would rely on his persuasive partial dissent to the original panel opinion, 848 F.2d 1396, 1412 (7th Cir.1988), as well as on his separate opinion here. It strikes me also as unrealistic to require plaintiffs to show that they were treated badly enough to quit, but for some reason did not. I would also follow Bennis v. Gable, 823 F.2d 723 (3d Cir.1987) (extending Elrod to any “disciplinary action” imposed for the exercise of first amendment rights), rather than Delong v. United States, 621 F.2d 618 (4th Cir.1980) (limiting Elrod to actions “substantially equivalent to dismissal”). We are already deeply into the business of protecting the first amendment rights of those who are already public employees and here I think we should follow the logic of our cases rather than attempt to draw the line quite unrealistically at constructive discharges.
For all these reasons I respectfully dissent to the extent indicated.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478743. Public record. Not legal advice.