Opinion

Cynthia Rutan v. Republican Party of Illinois

  • 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
Court
Court of Appeals for the Seventh Circuit
Filed
Feb 16, 1989
Status
Published
Author
Ripple
On the bench
Bauer, Cummings, Cudahy, Posner, Coffey, Easterbrook, Ripple, Manion, Kanne
Cited by
90 cases
Authority
More cited than 25.6%

Reversed on other grounds by Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990)

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

How later courts described this case

  • 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
  • district court’s dismissal of plaintiffs’ complaint for failure to state a claim without considering the issue of class certification violated Rule 23(e)(1); court considered the motion to dismiss with respect to the named plaintiffs only
  • “Because no class of plaintiffs . . . [was] certified, only the named plaintiffs . . . are before this court. Therefore, we treat plaintiffs’ claims as being brought solely by the named plaintiffs” in reviewing motion to dismiss for failure to state claim
  • discusses Circuit split and adopts Delong 's "substantial equivalent to a dismissal" test

Written by the judges who cited it.

The opinion

RIPPLE, Circuit Judge,

concurring in part and dissenting in part.

In this bobtailed 1 en banc proceeding, the majority has filed essentially the same opinion that was filed by the majority in the original panel’s consideration of this matter. Rutan v. Republican Party of Illinois, 848 F.2d 1396 (7th Cir.1988). I shall rely therefore on the separate opinion I filed when the case was before the panel. Id. at 1412 . I note only that, with the Second Circuit’s decision in Lieberman v. Reisman, 857 F.2d 896 (2d Cir.1988), the division among the circuits appears to deepen. Apparently, government workers in Hartford, New York, Philadelphia, Pittsburgh, and Atlanta can expect protection when a local politician makes life uncomfortable because they do not knuckle under to his political will — even though politics has nothing to do with their jobs. In Chicago, and perhaps Richmond, the watchword is “politics as usual.”

The need for Supreme Court review of this important question is evident. Ameri-can citizens serving their country in state and local government ought not have their legal protection depend on the accident of where Congress decided to draw the administrative line separating one circuit from another. Review on certiorari is particularly appropriate in this case because the majority’s reasoning depends, to a great extent, on its disagreement with the governing precedent of the Supreme Court. See Supreme Court Rule 17.1(c) (certiorari appropriate “[w]hen ... a federal court of appeals ... has decided a federal question in a way in conflict with applicable decisions of this Court”). It may be that the majority has perceived correctly the winds of change. But change must come from the Supreme Court, not a regional court of appeals. For us, stare decisis must be the governing principle.

. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 615 , 95 S.Ct. 719, 726 , 42 L.Ed.2d 751 (1975) (Blackmun, J., dissenting).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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