Petition — Elrod v. Burns

Supreme Court brief1976

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IN THE

Supreme Court of the United State ,

OCTOBER TERM, 1974, ~—

N° 74-1520

RICHARD J. ELROD, INDIVIDUALLY, AND AS SHERIFF OF

Cook County, ILLINoIs; THE DEMOCRATIC ORGANI-

ZATION OF COOK COUNTY, A CORPORATION; DEMO-

CRATIC COUNTY CENTRAL COMMITTEE OF COOK

COUNTY AnD RICHARD J. DALEY, INDIVIDUALLY, AND

AS PRESIDENT OF THE DEMOCRATIC ORGANIZATION OF COOK

COUNTY AND AS CHAIRMAN OF THE DEMOCRATIC COUNTY

CENTRAL COMMITIZEE OF Cook COUNTY,

Petitioners,

VS.

JOHN BURNS, FRANK VARGAS, JOSEPH DENNARD,

AND FRED BUCKLEY, ON BEHALF OF THEMSELVES AND

ALL OTHER PERSONS WHO WERE EMPLOYEES OF THE SHERIFF

OF COOK COUNTY ON DECEMBER 7, 1970 AND WHO WERE

NOT PROTECTED BY CIVIL SERVICE OR OTHER LAWS AGAINST

ARBITRARY DISCHARGE FROM THEIR EMPLOYMENT,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT.

RAYMOND F. SIMON,

THOMAS A. FORAN,

ROBERT E. WISS,

c/o Foran, Wiss and Schultz,

111 West Washington Street,

Suite 1731,

Chicago, Illinois 60602,

Telephone: 368-8330,

Attorneys for all other Petitioners.

THOMAS A. FORAN, BERNARD CAREY,

ROBERT E. WISS, State’s Attorney of Cook County,

IAN H. LEVIN, Illinois,

Of Counsel. 500 Chicago Civic Center,

Chicago, Illinois 60602,

Attorney for Richard J.

Elrod, Sheriff of Cook

County, Illinois, Petitioner.

SHELDON GARDNER,

Deputy State's Attorney,

Civil Actions Bureau,

PAUL P. BIEBEL, JR.,

Assistant State’s Attorney,

(312) 443-5460,

Of Counsel.

Gunthorp-Warren Printing Company. Chicago e Financial 6-6565

INDEX.

PAGE

SENET GIN a cc cccccccscccessnseeceess neae’ coe

PE cc cenetecnnneeunebekenaeeneebonas wus 2

Questions Presented for Review .........-..+eeee0: 3

ES GE GD GD oo cc cecceccbecsnsccesiscéens 4

ID 5:66 0b 40s dese Ca eK Rene RES SO DE ReeeRKes 6-33

PE ki. 6 cde enedewebenaus 0606460 00600en eee 6

I. No Constitutional Prohibition Exists Against Dis-

charge of Non-Civil Service Governmental Em-

ployees For Political Reasons ..............+. 7

A. First Amendment Rights Are Not Absolute

and Specific Rights Thereunder Are Afforded

Differing Degrees of Legal Protection Under

Differing Circumstances .............+.. 7

B. The Freedom of Political Association Per Se. 10

C. Freedom of Political Association and Non-

Civil Service Public Employment ....... 12

The Effective Discharge of Duties of the

Executive Branch of Government ...... 14

First Amendment Rights of the Public Em-

Ployer ....... cece seer ee eee taree es 16

Separation of Powers ............+.... 18

Political Association ..............+.06. 20

Philosophy of Representative Government . 21

D. The Irrational Consequences of the Seventh

Circuit Position on the Issue of Freedom of

I I ns gs ee eense ees s 23

E. The Patronage System .........2.ece00. 24

II. A Preliminary Injunction Cannot Properly Be

GE BHD. ec ccdvccecscvencveccsecess 30

A. If an Injunction Were Granted, Irreparable

Injury Would Be Suffered by the Defendants

and the General Public ..........scccees 30

B. Federal Equity Power Is Limited by Tradi-

tional Principles of Equity Jurisdiction .... 32

6 RESP Perr Ty TET TTT Te eT CT eT TT Ee 33

reer ror rere rT TT TS Te rer eerie Al-6

RI DD 5 6.60 KCK Css oS oes ceeded ees SESS ECs A7

CITATIONS.

Alomar v. Dwyer, 447 F. 2d 482 (2d Cir. 1971) ....... 5, 6

American Communications Ass'n. v. Douds, 339 U. S. 382

PED cc dn ukheéss an baeenekeeven see 6, 8, 9, 11-15, 29

Am. Fed. of State etc. Employees v. Shapp, 443 Pa. 527,

se ee COTES bec ccccdwesebscdsecsace en 6, 15

Arnett v. Kennedy, 94 S. Ct. 1633 (1974) ............ 6,7

Bailey v. Richardson, 182 F. 2d 46 (D.C. Cir. 1950) ... 6

Baker v. Carr, 369 U.S. 186 (1962) ................ 20

Chaplinksky v. New Hampshire, 315 U. S. 568 (1942) .. 8

Cox v. Louisiana, 379 U. S. 536 (1965) .............. 8

Cramp v. Bd. of Public Instruction, 368 U. S. 278 (1961). 10

Eastcin Airlines v. Civil Aeronautics Board, 261 F. 2d 830

CE GO, BRD oa ceccecenccacesseenencccnncis 30

Gaines Dry Cleaners v. Chicago, 123 F. 2d 104 (7th Cir.

) POrrerrerrT Try Tr eTTrTer TTT rT rere re 31

Garner v. Board of Public Works, 341 U.S.716 (1951) .. 11

Gerende v. Board of Supervisors, 341 U.S.56 (1951)... 12

In re Sawyer, 124 U. S. 200 (1888) ................ 32

Illinois State Employees Union v. Lewis, 473 F. 2d 561

e. be Oe errr Terre 5, 7, 10, 23 passim

Indiana State Employees v. Negley, 365 F. Supp. 225

(S. D. Ind. 1973), afd SOl F. 2d 1239 ......20005. 6, 7

ili

Keyishian v. Board of Regents, 385 U. S. 589 (1967) .... 10

Moldowsky v. Lindsay, 341 F. Supp. 1393 (S. D. N. Y.

SEE; Cha AERGMEN EAA RE OH s ok 6s $6 6654s 0000s. 6

Myers v. United States, 272 U. S. 52 (1926) .......... 18

N. A. A.C. P. v. Button, 371 U. S. 415 (1963) ........ 8

New York, C. & St. L. R. Co. v. Brotherhood of Locomotive

Firemen & Enginemen, 358 F. 2d 464 (6th Cir. 1966).. 31

Norton v. Blaylock, 409 F. 2d 772 (8th Cir. 1969) ..... 6

Nunnery v. Barber, 503 F. 2d 1349 (4th Cir. 1974). .6, 7, 15, 18

N. L. R. B. v. Montgomery Ward, 157 F. 2d 486 (8th Cir.

Re SE ee ree eee 16

Sree DB, Gr Ws 6 ce cece cncecesssvecons 21

Precision Inst. Mfg. Co. v. Automotive M. M. Co., 324

ay Oe CEE CONN EH 6K SESS Oder eednecseuess 32

Progress Development Corp. v. Mitchell, 182 F. Supp.

681 (N. D. Ill. 1960); rev'd in part 286 F. 2d 222 (7th

Sey SEE cohG swe kde bee bd 04 68 URES 654860080 31

Speiser v. Randall, 357 U. S. 513 (1958) ............ 12

United Public Workers v. Mitchell, 330 U. S. 75 (1947)

PE EEE ee ere re ee ee Tee 24-25

United States v. Robel, 389 U. S. (1967) ............ 10, 11

U. S. Civil Service Commission v. National Association of

Letter Carriers, 413 U. S. 548 (1973) ............. Y

Vitarell v. Seaton, 359 U. S. 535 (1959) ............. 19

Walton v. House of Representatives, 265 U.S. 487 (1924). 32

Wieman v. Updegraff, 344 U. S. 183 (1952) .......... 10

Yakus v. U. S., 321 U. S. 414 (1944) ................ 31

Young v. Coder, 346 F. Supp. 165 (M. D. Pa. 1972) .... 6

CONSTITUTION.

United States Constitution, Amendment I, XIV . .5, 7, 8 passim

United States Constitution, Article IV, Section 4 ........ 22

OTHER AUTHORITIES.

Couturier, Patronage v. Performance—The Balance Sheet

of Civil Service Reform, Good Government (Fall 1967). 27

Douglas, New Republic (July 14, 1952) .............. 26

Farley, Patronage and the New Deal, American Magazine

( @.. | Perret DU 26

Fish, The Civil Service and The Patronage (2nd pub’n.

PP ee ee err YS

Key, Politics, Parties and Pressure Groups (Sth ed. 1964).. 29

Lubell, The Future of American Politics (3rd ed. 1965) .. 28

Moynihan and Wilson, Patronage in New York State, 1955-

1959, American Political Science Review, vol. 58, no. 2

(Same 1666) ..ccovsdeduseceureseeseee 28

Schoen, Politics, Patronage and the Constitution, 3 Ind.

Las. F. 3S CIGGD) «on ccccccenusvesecceseuseans 26

White and Smith, Politics and Public Service (1939) .... 29

Wilson, The Bureaucracy Problem, Public Interest, No. 6

(Winter 1967) ..... 22. c cece cece cece cence eneees 27

Note: Patronage Dismissals: Constitutional Limits and Poli-

tical Justifications, 41 U. Chi. L. Rev. 297 (1974)... 6

Note: Public Employees—Freedom of Association—Dis-

charge of Non-Policy Making Public Employees’

Freedom of Association, 26 Vand. L. Rev. 1090

(2) ery 6

IN THE

Supreme Court of the GQnited States

OCTOBER TERM, 1974

RICHARD J. ELROD, INDIVIDUALLY, AND AS SHERIFF OF

Cook County, ILLINOIS; THE DEMOCRATIC ORGANI-

ZATION OF COOK COUNTY, A CoRPORATION; DEMO-

CRATIC COUNTY CENTRAL COMMITTEE OF COOK

COUNTY anD RICHARD J. DALEY, INDIVIDUALLY, AND

AS PRESIDENT OF THE DEMOCRATIC ORGANIZATION OF COOK

COUNTY AND AS CHAIRMAN OF THE DEMOCRATIC COUNTY

CENTRAL COMMITTEE OF COooK COUNTY,

Petitioners,

vs.

JOHN BURNS, FRANK VARGAS, JOSEPH DENNARD,

AND FRED BUCKLEY, ON BEHALF OF THEMSELVES AND

ALL OTHER PERSONS WHO WERE EMPLOYEES OF THE SHERIFF

OF CooK COUNTY ON DECEMBER 7, 1970 AND WHO WERE

NOT PROTECTED BY CIVIL SERVICE OR OTHER LAWS AGAINST

ARBITRARY DISCHARGE FROM THEIR EMPLOYMENT,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT.

Now come the petitioners, Richard J. Elrod, individually and

as Sheriff of Cook County, Illinois the Democratic Organization

of Cook County, Democratic County Central Committee of

Cook County and Richard J. Daley, individually and as Presi-

dent and Chairman of said Organization and Committee, by

their attorneys, and pray for the issuance of a Writ of Certiorari

to the United States Court of Appeals for the Seventh Circuit

to review the final order of that court in the above entitled

cause, and in support of the petition state as follows:

REPORT OF OPINION.

The opinion of the Court of Appeals is reported in 509 F.

2d 1133 (7th Cir. 1975). A copy thereof is appended hereto

as Appendix A.

JURISDICTION.

This petition is filed pursuant to Rule 21 ef seq. of the Rules

of the Supreme Court of the United States.

(i) The judgment sought to be reviewed was entered

on January 30, 1975 (Appendix A).

(ii) The order denying a petition for rehearing was

entered on April 24, 1975 (Appendix B).

(iii) Jurisdiction for review herein is conferred by 28

U.S. C. § 1254(1).

—

QUESTIONS PRESENTED FOR REVIEW.

1. Is there any First Amendment Constitutional prohibition

against discharging non-civil service governmental employees

for political reasons, bearing in mind that all courts that have

considered the question, except the Seventh Circuit, have held

no such constitutional prohibition exists.

2. In considering the constitutional “balancing of interests”

question here between the private interest in .ceedom of poli-

tical association and the public interest in effective unsubverted

governmental operation, should the balance be resolved in favor

of the public interest because: (1) First Amendment Rights

are not absolute and specific rights thereunder receive differing

degrees of protection under differing circumstances, and a limita-

tion is essential for the effective discharge of executive govern-

mental office; (2) First Amendment Rights of the public em-

ployer; (3) basic concepts of the philosophy of representative

government; (4) the doctrines of separation of powers, political

questions and justiciability; (5) the irrational consequences of a

contrary disposition, and (6) an objective review of the patronage

system.

3. Can a preliminary injunction be properly granted where

circumstances of grave damage to the public interest in the

operation of a governmental office exist.

STATEMENT OF THE CASE.

Each of the individual respondents-plaintiffs was a non-civil

service employee of the Sheriff of Cook County, Illinois on or

before December 7, 1970, when Richard J. Elrod, a Democrat,

replaced Joseph Woods, a Republican, as Sheriff. The respond-

ents-plaintiffs were also active members of the Republican party

who actively campaigned and worked for Sheriff Elrod’s Re-

publican opponent in the 1970 Sheriff's election. The respond-

ents-plaintiffs were not protected by Civil Service or other laws

against summary discharge from their employment. At some

point subsequent to December 7, 1970, the date Elrod took

office as Sheriff, the respondents-plaintiffs, with one exception,

were dismissed from their employment allegedly because they

were Republicans and had refused or failed to obtain Demo-

cratic sponsorship by agreeing to work for or contribute to the

Democratic party. At the time the complaint was filed, the last

respondent-plaintiff was allegedly in imminent danger of dis-

charge for the same reason.

The complaint also alleged that Mr. Elrod effected the dismis-

sals of the respondents-plaintiffs “under the direction and con-

trol of and in conspiracy” with the petitioners-defendants here,

the Democratic Organization of Cook County, Democratic

County Central Committee of Cook County and Richard J.

Daley, the Chairman of said groups.

The crux of respondents-plaintiffs’ complaint was that their

dismissals were based upon their political associations and that

this violated their rights under the First and Fourteenth Amend-

ments to the Constitution.

Ultimately, the District Court granted petitioners-defendants’

motion to dismiss for failure to state a claim upon which relief

may be granted. In reaching this conclusion Judge Bauer ex-

on ee ee

pressly relied upon the decision in Alomar v. Dwyer, 447 F. 2d

(2nd Cir. 1971) cert. denied 404 U. S. 1020 (1972), which

held:

“*... the... 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 affiliation’ . . . [T]he sole protection for govern-

ment employees who have been dismissed for political

reasons must be found in civil service statutes or regula-

tions.” (p. 483)

However, the Court of Appeals for the Seventh Circuit, rely-

ing on its intervening decision in //linois State Employees Union

v. Lewis, 473 F. 2d 561 (1972), reversed, holding that the

dismissal of a non-civil service public employee because of his

poitical associations is violative of the First and Fourteenth

Amendments to the Constitution.

ARGUMENT.

REASONS FOR GRANTING THE WRIT.

Introduction.

Petitioners respectfully urge the Court to grant the writ for

the following reasons:

First, the Seventh Circuit in the present cause, and in Lewis,

supra, is the only court that has held, and “without direct

precedent”,’ that a constitutional prohibition exists against dis-

charging non-civil service governmental employees for political

reasons. The Seventh Circuit thus is in direct conflict with the

decisions of the Second Circuit, Fourth Circuit, Eighth Circuit,

D. C. Circuit, lower federal decisions, decisions of this Court

and of the Supreme Court of Pennsylvania. (Alomar v. Dwyer,

447 F. 2d 482 (2nd Cir. 1971) cert. denied 404 U. S. 1020

(1972); Nunnery v. Barber, 503 F. 2d 1329 (4th Cir. 1974);

Norton v. Blaylock, 409 F. 2d 772 (8th Cir. 1969), aff'g. 285

F. Supp. 659, 662, 663; Bailey v. Richardson, 182 F. 2d 46

(D. C. Cir. 1950), affd. 341 U. S. 917; Indiana State Em-

ployees Assn., Inc. v. Negley, 365 F. Supp. 225 (D. C. Ind.

1973); Young v. Coder, 346 F. Supp. 165 (M. D. Pa. 1972);

Moldawsky v. Lindsay, 341 F. Supp. 1393 (S. D. N. Y. 1972);

American Communications Assn. Vv. Douds, 339 U. S. 382

(1950); Arnett v. Kennedy, 94 S. Ct. 1633, 1660 N. 7 (1974);

(American Federation of State, County and Municipal Em-

ployees v. Shapp, 443 Pa. 527, 280 A. 2d 375 (1971). This

Court should grant the writ, to resolve the conflict on this

1. Nunnery v. Barber, 503 F. 2d 1349, 1352 (4th Cir. 1974).

Note, Patronage Dismissals: Constitutional Limits and Political

Justifications, 41 U. Chi. L. Rev. 297, 316-7 (1974); Note, Public

Employees—Freedom of Association—Discharge of Non-Policy

Making Public Employees’ Freedom of Association, 26 Vand. L.

Rev. 1090, 1097 (1973).

momentous federal constitutional question between the unprece-

dented position of the Seventh Circuit and the applicable deci-

sions of other federal courts (several since the Lewis case'*)

and of the Supreme Court.

Second, the case involves whether there is any Constitutional

prohibition against discharging a non-civil service governmental

employee for political reasons. Thus an extremely sensitive con-

stitutional “balancing of interests” question is presented between

the private interest in freedom of political association, and the

public interest in effective governmental office operation (unsub-

verted by persons of opposite political affiliation). The case and

the conflict presented involves a momentous, and even historic,

question of federal constitutional law, having far reaching rami-

fications on the issues of freedom of political association, first

amendment rights of the public employer, basic concepts of the

philosophy of representative government, separation of powers,

political questions, justiciability and an objective review of the

patronage system, which have not been but should be settled by

the Supreme Court.

Thirdly, the case involves the propriety of injunctive relief in

the context of potentially grave injury to the public interest.

NO CONSTITUTIONAL PROHIBITION EXISTS AGAINST DIS-

CHARGING A NON-CIVIL SERVICE GOVERNMENTAL

EMPLOYEE FOR POLITICAL REASONS.

A. First Amendment Rights Are Not Absolute and Specific

Rights Thereunder Are Afforded Differing Degrees of

Legal Protection Under Differing Circumstances.

While First Amendment rights and freedoms are fundamental,

they are not in their nature absolute and it has always been

recognized that they are properly subject to limitations or

la. Nunnery v. Barber, supra (1974); Indiana State Employees

Assn., Inc. Vv. Negley, supra (1974); See also: Arnett v. Kennedy,

94 S. Ct. 1633. 1660 N. 7 (1974).

restrictions in relation to other legal rights, duties or legally

protectible interests. Thus as the Court stated in Chaplinsky v.

New Hampshire, 315 U. S. 568, at page 571:

“Allowing the broadest scope to the language and purpose

of the Fourteenth Amendment, it is well understood that

the right of free speech is not absolute at all times and

under all circumstances.” (See also: Cox v. Louisiana,

379 U.S. 536, 554 (1965).

And as the Court stated in American Communications Associa-

tion Vv. Douds, 339 U. S. 382, at page 394:

“.. . it has long been established that these freedoms (First

Amendment) themselves are dependent upon the power of

constitutional government to survive. If it is to survive it

must have power to protect itself... Freedom of speech

thus does not comprehend the right to speak on any subject

at any time.” (Emphasis added and insert for clarity.)

Moreover, the Court has held that not all rights under the

First Amendment are afforded the same degree of legal piotec-

tion, and that the degree of protection afforded also varies with

the circumstances involved.

Thus, as the Court stated in the Cox case supra (379 U. S.

536) at page 555:

“We emphatically reject the notion . . . that the First and

Fourteenth Amendment afford the same kind of freedom to

those who would communicate ideas by conduct . . . as

these amendments afford to those who communicate ideas

by pure speech.” (Emphasis added. )

The opinion below fails to note the distinction between the

First Amendment right of freedom of speech per se, and the

related but clearly distinguishable right of freedom of political

association, The degree of constitutional permissible limitation

of these rights in relation to proper government objectives varies

widely. As was stated by Mr. Justice Harlan in his separate

opinion in N. A. A. C. P. v. Button, 371 U. S. 415 (1963), at

page 454:

“But as we move away from speech alone and into the

sphere of conduct—even conduct associated with speech or

resulting from it—the area of legitimate governmental

interest expands. A regulation not directly suppressing

speech or peaceable assembly, but having some impact on

the form or manner of their exercise will be sustained if

(it) has a reasonable relationship to a proper governmental

objective and does not unduly interfere with such individual

rights.” (Insert for clarity and emphasis added.)

And as the Court stated with respect to the First Amendment

freedom of association in the specific context of political affilia-

tions, in American Communications Assn. Vv. Douds, 339 U. S.

382 (1950) at page 391:

“The fact that the statute identified persons by their

political affiliations and beliefs, which are circumstances

ordinarily irrelevant to permissible subjects of government

action, does not lead to the conclusion that such circum-

stances are never relevant.” (Emphasis added.)

And as the Court went on to state in Douds, supra, at page 339:

“We have never held that such freedoms are absolute . . .

When a particular conduct is regulated .. . (which)...

results in an indirect, conditional, partial abridgment of

speech, the duty of the courts is to determine which wf

these two conflicting interest demands the greater protec-

tion under the particular circumstances presented.” (Insert

for clarity and emphasis added. )

If there were any question as to the continued validity of

these principles, it was answered by this Court in U. S. Civil

Service Commission v. National Association of Letter Carriers,

413 U. S. 548 (1973). The Court stated at page 567: ,

“Neither the right to associate nor the right to participate

in political activities is absolute in any event. Sée, e.g.,

Rosario Vv. Rockefeller, U.S. (1973); Dunn» “Blumstein,

405 U.S. 330, 336 (1972); Bullock v. Garter, 405 U.S.

134, 140-141 (1977); Jenness v. Fortson, 403 U.S. 431

(1971); Williams v. Rhodes, 393 IES. 23, 30-31 (1968).”

“

The opinion below is bottomed essentially on the erroneous

assumption that membership in a particular poiitical party is an

absolute First Amendment freedom not subject to any limita-

tion. If this were true, then the conditioning of public employ-

ment on any political party affiliation consideration would

constitute an infringement of First Amendment rights and would

be actionable under the “Fourteenth Amendment Right” doc-

trine. However, as shown above, no First Amendment rights are

absolute and all are subject to constitutionally permissible

restriction or limitation under certain circumstances. Further-

more, here not pure speech, but more substantively conduct

associated therewith speech, is involved. In the context of other

paramount considerations which the Seventh Circuit has over-

looked ( ind as will hereafter be noted) the limitation on free-

dom of association involved in the context of non-civil service

employment is completely reasonable in light of the govern-

mental interest involved.

B. The Freedom of Political Association Per Se.

The constitutional concept relied upon by the Seventh Circuit

in sustaining the plaintiffs’ claims in Lewis, and thus now in this

cause, is the freedom of association. The only authorities relied

on by the Respondents in Seventh Circuit below relating to

political association were the Communist loyalty oath cases.°

However, these cases do not hold that public employment can-

not be conditioned on political party affiliation. They hold that

public employment cannot be conditioned on the performance

of an act of disclosure of political affiliation, when the per-

formance of the act may subject the employee to criminal sanc-

2. Wieman v. Updegraff, 344 U. S. 183 (1952); Cramp v.

Board of Public Instruction, 368 U. S. 278 (1961); U. S. v. Robel,

389 U. S. 258 (1967); Keyishian v. Board of Regents, 385 U. S.

589 (1967).

tions and the non-performance subject him to serious stigma.*®

To say that these cases stand for the proposition that public

employment cannot be conditioned on political party affiliation

incident to the concept of freedom of association is simply a

tortured construction of the cases.

More significantly, however, there is specific and explicit

authority for the proposition that public employment or benefits,

can properly be conditioned on political party affiliation, with-

out impairing the First Amendment freedom of political associa-

tion. As was pointed out in sub-point A above, this Court

specificaily held in American Communications v. Douds, 339

U. S. 382 (1950) at page 391:

“The fact that the statute identifies persons by their politi-

cal affiliations and beliefs . . . does not lead to the conclu-

sion that such circumstances are never relevant.” (Emphasis

added. )

Moreover, in the Douds case which specifically dealt with free-

dom of political association, the Court also characterized

restrictions or limitations thereof at page 399, as constituting

the regulation of:

“.. conduct... (which)... results in an indirect, condi-

tional, partial abridgement of speech . . .” (Emphasis

added. )

While the Douds case is most relevant in the case at bar (as

will be discussed hereafter in more detail), it is to be observed

that the principle of conditioning public employment or benefits

on considerations relating to political party affiliation, and

accordingly freedom of association, has also been upheld in

other contexts in the cases of Garner v. Board of Public Works,

3. See: Robel case, 389 U. S. 258, 265:

“The act in question put appellee to the choice of surrendering

his organizational affiliation . . . or giving up his job. When

[he] refused to make that choice, he became subject to a pos-

sible criminal penalty or 5 years imprisonment and a $10,000

fine.” (Insert for clarity).

341 U. S. 716 and Gerende v. Board of Supervisors, 341 U. S.

56. As this Court itself said in characterizing these cases in

Speiser v. Randall, 357 U. S. 513, at page 527:

“In these cases . . . there was no attempt directly to control

speech but rather to protect . . . some interest clearly within

the sphere of governmental concern.” (Emphasis added.)

The sphere of governmental concerns in the non-civil service

Or patronage employment area, and the associated right to free-

dom of association are discussed in the next section.

C. Freedom of Political Association and Non-Civil Service

Public Employment.

As shown above, First Amendment rights are not absolute

and are properly subject to limitation or restriction in the public

interest. The determination of the validity of any particular

limitation of the freedom of association turns, as in other cases,

on a balancing of interests. As the Court stated in the Douds

case with respect to freedom of political association in the

context of a particular political party affiliation as a condition

of government benefit, page 399:

“When particular conduct is regulated in the interest of

public order, and the regulation results in an indirect, con-

ditional, partial abridgment of speech, the duty of the

courts is to determine which of these two conflicting inter-

ests demands the greater protection under the particular

circumstances presented.” (Emphasis added.)

In the Douds case, the Court held that the denial of the

government benefit based on the particular political party affilia-

tion did not violate the First Amendment right of freedom of

association.

‘While the political affiliation in the Douds case was that of

the communist party, and the context of the issue was rights

incident to labor relations, a striking analogy can be drawn

between the rationale of valid consideration for the restriction

of associational rights or beliefs ‘n Douds and in the case at bar.

Thus, as the Court in Douds stated at page 399:

“. . . legitimate attempts to protect... , not from the

. . . possible effects of . . . ideologies, but from present

excesses of direct, active conduct are not presumptively bad

because they interfere with and, in some of its ramifica-

tions, restrain the exercise of First Amendment rights.”

(Emphasis added).

And as it stated, relative to a restriction on freedom of asso-

ciation based on a particular political party affiliation at page

402:

“. .. (it) . . . does not prevent or punish by criminal

sanctions the making of a speech, the affiliation with any

organization, or the holding of any belief.”

And as stated at page 403:

“The ‘discouragements’ . . . proceed not against the groups

or beliefs identified therein, but only against the combina-

ation of those affiliations or beliefs with occupancy of

a position of ... power .. .” (Emphasis added).

And as stated at page 404, with respect to the specific limitation:

“... (it) . . . did not restrain the activities of the...

Party as a political organization; nor did it attempt to

stifle beliefs . . . (it) . . . touches only a relative handful

of persons, leaving the great majority of persons of the

identified affiliations and beliefs completely free from re-

siraint. And it leaves those few who are affected free to

maintain their affiliations and beliefs subject only to pos-

sible loss of position .. .” (Emphasis added).

And as stated at page 408-9:

“If the principle that one may under no circumstances be

required to state his beliefs on any subject nor suffer the

loss of any right or privilege because of his beliefs be a

valid one, its application in other possible situations be-

comes relevant. Suppose, for example, that a federal statute

provides that no person may become a member of the

Secret Service force assigned to protect the President un-

less he swears that he does not believe in assassination of

the President . . . An affirmative answer hardly com-

mends itself to reason unless, indeed, the Bill of Rights has

been converted into a ‘suicide pact’”. (Emphasis added).

And as the Court most succinctly stated at page 412:

“.. . (The First Amendment) . . . requires that one be

permitted to believe what he will. It requires that one be

permitted to advocate what he will unless there is a clear

and present danger . . . Jt does not require that he be per-

mitted to be the keeper of the arsenal. (Insert for clarity

and emphasis added).

Thus, it is abundantly clear that the denial of a government

benefit based on particular political party affiliation is not per se

constitutionally impermissible.

Quite to the contrary, it is permissable when reasonably neces-

sary to protect some interest within the sphere of governmental

concern. The necessity of protecting important, indeed, basic

and paramount governmental interests in the area of non-civil

service employment is unquestionable.

The Effective Discharge of Duties of the Executive

Branch of Government.

While it is pleasant to contemplate a utopian society where

political party affiliations are sublimated and all parties work

together in harmony for the good of the government, un-

fortunately, this is not the fact of life. In Douds, supra, the

Court articulated the dangers of political party affiliation in the

context of effective government operations when it stated at

page 423:

“Parties, whether in office or out, are often irresponsible in

their use and abuse of freedoms of speech and press.

They all make scapegoats of unpopular persons or classes

and make promises of dubious sincerity or feasibility in

order to win votes. All parties, when in opposition, strive

to discredit and embarass the Government of the day by

spreading exaggerations and untruths and by inciting preju-

dice or unreasoning discontent, not even hesitating to in-

jure the Nation’s prestige among the family of nations.”

(Emphasis added).

It was based upon this realistic appraisal of “the facts of political

life” that the Court in Douds held that the interest in freedom

of political association was properly limited in light of the

governmental interest.

Clearly there is no impermissible infringment of first amend-

ment rights incident to conditioning public employment on party

affiliation in the non-civil service area, for, as stated in Douds,

there is no attempt thereby to stifle ideologies, but rather to

protect from “present excesses of direct active conduct’ (p. 399);

the restriction does not prevent or punish by criminal sanctions

(p. 402); the “discouragement” proceeds only against the

“combination of affiliations with occupancy of positions of

power” (p, 403); it touches only a handful of persons and leaves

those few affected “free to maintain their affiliation and beliefs

subject only to loss of position” (p. 404). And further, as shown

above, any other resolution of the issue converts the Bill of

Rights into a “suicide pact” (p. 409) and turns over the keys

of the “arsenal” (p. 412).

Also pertinent at this point is the recent statement of the

Fourth Circuit in Nunnery v. Barber, 503 F. 2d 1349 (1974).

Quoting with approval American Fed. of State etc. Employees

Vv. Shapp, 443 Pa. 527, 280 A. 2d 375 (1971) the Court said:

“In denying to patronage employees, who had obtained

through political affiliation their jobs relief from discharge,

the [Shapp] Court stated tersely that those who ‘live by

the political sword must be prepared to die by the political

sword’ and, in dying by the political sword, acquire no

constitutional right to relief. It phrased its conclusion thus

(280 A. 2d at p. 378):

‘We specifically hold that State employees who ob-

tained their positions (jobs )—as all the parties agree

they did—by politics or party patronage, and com-

plain of being fired solely on the grounds of political

sponsorship or affiliation, have (1) no . . . Constitu-

tionally protected right to their jobs under (a) either

the Federal or (b) the State Constitution...”

(pp. 1358, 1359).

First Amendment Rights of the Public Employer.

While the petitioners submit that the above should be dis-

positive on the issue of the-balancing of the interest of freedom

of association in the non-civil service employment context, it is

to be observed that additional considerations weigh on the side

of a constitutionally permissable restraint based on_ political

party affiliation.

While political office is involved herein, the basic relationship

of employer-employee exists. The issue of first amendment

rights in the context of an employment relationship has arisen in

the field of labor relations and is relevant to the case at bar. The

leading case is that of N. L. R. B. v. Montgomery Ward, 157

F. 2d 486 (8th Cir. 1946), which involved the balancing of the

common law duties and obligations incident to the employment

relationship and the reconciliation of the same with first amend-

ment rights. The court held that incident to the employment

relationship, the employee owes the duty of care, obedience,

allegiance and loyalty (Supra, 157 F. 2d at 496-8). More sig-

nificantly, however, for the purposes herein, in the context of

these duties, it was argued in that case that first amendment

rights were violated by the employer incident to certain acts and

conduct which constituted unlawful “coercion” of the employees.

The acts complained of were, the expression by the employer

of his opinion, position, policy or views of matters relating to

association activities (unions) during the working hours; com-

pulsory attendance at meetings for discussion and presentation

of such matters and of policy between the employer and em-

ployees and statements concerning loss of employment or liability

of employees for participation in certain employment rights

(Supra, at pages 498-500).

In disposing of this argument of “coercion”, the court ob-

served that the employer, like the employee, also has first amend-

ment rights which are guaranteed by the constitution. In regard

to the employer's rights, the court stated at page 499:

“The first amendment is concerned with the freedom of

thought and expression of the speaker or writer, not with

the conditions under which the auditor or listener receives

the message. One need not, as a condition precedent to

his right of free speech under the first amendment, secure

permission of his auditor. The first amendment does not pur-

port to protect the right of privacy, nor does it require

that they shall have volunteered to listen . . . speech is

very frequently invoked as a means to persuade those who

do not agree with the speaker and may not even wish to

hear him.” (Emphasis added).

In expressing the rationale of the decision the Court succinctly

stated at page 500:

“The first amendment is intended to assure a privilege that

in itself must be so actual and certain that fear and. doubt

are absent from the individuals mind, or the freedom is but

an abstraction. If the speaker must hesitate before uttering

his thoughts, if he must weigh and nicely balance every

word so as to determine whether what he is about to say

is permitted or forbidden, the guaranty tendered by the

Constitution is little more than theoretical. He is wholly

at the mercy of the varied understanding of his hearers

and consequently of whatever inference may be drawn as

to his intent and meaning. Such a distinction offers no

security for free discussion, Thomas v. Collins, supra. If

subtleties may be invoked as the basis for any inference

that non-coercive remarks may have had an ‘aitered im-

port’ in the minds of the listeners, any employer would be

subjected not only to the varied understanding of his hear-

ers, but also subjected to the chance of what the board

may infer. We think such a doctrine would take away all

security for free discussion.” (Emphasis added).

The public executive officer obviously has no worse rights

with regard to expecting and demanding the common law duty

owed by an employee as any private employer. It would not

seem necessary to note that partisan political party considera-

tion are of the essence in employment in the elective-appoin-

tive public oflice and a matter vitally touching the interest of

the public employer. More significantly the public officer has

the right of freedom of speech as to political matters and his-

torically, the legal right to condition public employment on

political considerations. The destructive effect on these rights

would be palpable if the officer could not utter his thoughts, or

exercise the right incident to his office, without being “wholly

at the mercy of the varied understanding of the employee, and

consequently of whatever inference may be drawn as to his in-

tent and meaning.” (Montgomery Ward, supra). If respondent's

position in this case is upheld, the concerns so well expressed by

Judge Campbell in //linois State Employee Union, Council 34,

AFL-CIO v. Lewis, 473 F. 2d 561 (7th Cir. 1972), cért. den.,

Feb. 20, 1973, are certain to occur. As judge Campbell pre-

dicts if “Any and all such employees who are discharged can

State an actionable claim in the federal district court by simply

alleging . . . that the discharge was caused by political party

affiliations or activities,” the courts indeed will become “super

civil service commisions.” The Fourth Circuit in Nunnery, was

thus moved just last year to state:

“We find convincing the point that the delineation between

the employees who are and who are not protected from

patronage discharge poses an issue which should be re-

solved legislatively, not judicially . . .” (503 F. 2d at 1356).

The “chilling” effect on the public employer’s right of free-

dom of speech and political association is manifest.

Separation of Powers.

While the discharge of duties of public office and efficient

administration are perhaps the most immediate and devasta-

ting effects of the decision below some additional effects are to

be noted.

Incident to the fundamental doctrine of separation of powers,

it has long been recognized that executive office carries with it

the power of appointment or removal at will. In the case of

Myers Vv. United States, 272 U. S. 52 (1926), the Court passed

upon the unrestricted right and power of the chief executive to

remove his appointee. It held that the right and power was im-

plied from those constitutional provisions which establish where

the executive power is vested (272 U. S. at 163-4) and the

duty to faithfully execute the law (272 U. S. at 164). The

reasoning of the Court reflects the public interest considera-

tions involved in this right and power. The Court stated at

page 117, that the chief executive:

“. . . alone and unaided could not execute the laws. He

must execute them by the assistance of subordinates . . .

even in the absence of expressed words . . . as part of his

executive power he should select those who were to act for

him ... in the execution of the laws . . . as his selection of

administrative officers is essential to the execution of the

laws ..., so must be his power of removing those for whom

he cannot continue to be responsible.”

The Myers case is particularly significant with respect to the

case at bar since the case revolved around the federal tenure of

office act which was passed during President Andrew Johnson’s

administration because of, as the Court states in Myers at page

151:

“The alleged general use of patronage for political pur-

poses by the President.”

Moreover, as one of the reasons for its decision establishing the

absolute power of removal in the chief executive the court in

Myers stated at page 164:

“. . . to hold otherwise would make it impossible. . . in

case of political . . . differences . . . to take care that the

Pad

laws be faithfully executed.

It is to be noted that the Myers case has never been overruled

or even modified by the Supreme Court. This principle preceded

the Myers case* and has been followed since.*

4. Crenshaw v. United States, 134 U. S. 99, 108, 10 S. Ct.

431, 434 (1890); Keim v. United States, 177 U. S. 290, 20 S. Ct.

574 (1900); Tavlor and Marshall v. Beckham (No. 1), 178 U. S.

548, 575, 20 S. Ct. 890 (1905).

5. Vitarelli v. Seaton, 359 U. S. 539, 79 S. Ct. 968 (1959).

Political Question.

While the area of technical justiciability is considered to have

been broadened by the case of Baker v. Carr, 369 U. S. 186

(1962), the precise rationale of the opinions rendered in the

Baker case would weigh on the side of non-intervention by the

judiciary in this specific area.

In Baker v. Carr, Mr. Justice Douglas, with the majority,

concedes at page 245:

“There are, of course, some questions beyond judicial

competence. Where the performance of a ‘duty’ is left to

the discretion and good judgment of an executive officer,

the judiciary will not compel the exercise of his discretion

one way or the other, . . . for to do so would be to take

over the office.”

Mr. Justice Clark, with the majority gives a very persuasive

reason why he would not have voted as he did in Baker v. Carr

if the design of the State’s voting districts had not been com-

pletely irrational. At pages 258 and 259 he states:

“Although I find the Tennessee apportionment statute of-

fends the Equal Protection Clause, / would not consider

intervention by this Court into so delicate a field if there

were any other relief available to the people of Tennessee.

But the majority of the people of Tennessee have no prac-

tical opportunities for exerting their political weight at the

polls to correct the existing “invidious discrimination.”

(Emphasis added).

Mr. Justice Stewart, with the majority, at page 265 con-

cedes that it is the “irrational” basis of Tennessee’s voting dis-

tricts that generated the Supreme Court’s power to interfere

Mr. Justice Frankfurter, in his dissent in Baker v. Carr stated

at page 267:

“Disregard of inherent limits in the effective exercise of

the Court’s judicial power’ . . . presages the futility of

judicial intervention in the essentially political conflict of

forces by which the relation between population and

representation has time out of mind been and now is

determined.”

And stated at page 270:

“There is not under our Constitution a judicial remedy for

every political mischief . . . The Framers carefully and

with deliberate forethought refused so to enshrine the judi-

ciary . . . appeal for relief does not belong here. Appeal

must be to an informed, civically militant electorate. In a

democratic society like ours, relief must come through an

aroused popular conscience that sears the conscience of

the people’s representatives.”

And stated at page 287:

“What renders cases of this kind nonjudiciable is not nec-

essarily the nature of the parties to them, for the Court has

resolved other issues between similar parties; nor is it the

nature of the legal question involved. for the same type of

question has been adjudicated when presented in other

forms of controversy. The crux of the matter is that courts

are not fit instruments of decision where what is essentially

at stake is the composition of those large contests of policy

traditionally fought out in non-judicial forums, by which

government and the actions of government are made and

unmade.” (Emphasis added) (See also: O’Brien v. Brown,

409 U. S. 1, 92 S. Ct. 2718, 2720 (1972)).

From the above, it would appear fair to observe that the

absence of any non-judicial effective relief by a “majority of the

people” was the sine qua non of the Baker decision on justici-

ability. It would seem unnecessary to note that a “majority of

the people” have effective relief against an elected official who

does not do a job of hiring and firing satisfactory to the people

—they vote him out of office.

Philosophy of Representative Government.

As was stated by Mr. Justice Douglas in the Baker case, at

page 245:

“Where the performance of a ‘duty’ is left to the discretion

and good judgment of an executive officer, the judiciary will

not compel the exercise of his discretion one way or the

other .. . for to do so would be to take over the office.”

(Emphasis added).

This statement is but a reflection of the American philosophy

of representative government. The people elect their representa-

tives to carry out the function of office. The majority of the

people make the selection of the man they wish to assume that

office and he is vested with those indefinite, administrative re-

sponsibilities and discretion of executive office. The govern-

mental system provides the sanction for his failure to exercise

them to the satisfaction of the people—removal from office at the

next election.

The majority of the people did not select the judiciary to per-

form those functions, nor to control the executive in the exer-

cise of those functions. Insofar as the exercise of those func-

tions do not infringe on constitutional rights, the control thereof

by the judiciary is tantamount to “taking over” the office and

more significantly, depriving the electorate of its only sanction

for the unsatisfactory performance of executive office to wit,

non re-election.

The caveat of Justice Frankfurter in Baker v. Carr, supra,

at page 749 is relevant in this regard:

“The influence of those converging considerations—the

caution not to undertake decisions where standards meet

for judicial judgment are lacking, the reluctance to inter-

fere with matters of state government in the absence of an

unquestionable and effectively enforceable mandate, the un-

willingness to make courts arbiters of the broad issues of

political organization historically committed to other in-

stitutions and for whose adjustment the judicial process is

ill adapted—has been decisive of the settled line of cases,

reaching back more than a century, which holds that Art.

IV, Sec. 4 of the Constitution, guaranteeing to the States

‘a Republician Form of Government is not enforcible

through the courts.’ ”

It would seem persuasive, that if the judiciary does not en-

force the guarantee of Article IV, Section 4 of the Constitution,

it should abstain from any possible impairment of the institu-

tions, sanctions or natural operations thereof.

D. The Irrational Consequences of the Seventh Circuit Posi-

tion on the Issue of Freedom of Political Association.

As heretofore noted, the position of the Seventh Circuit stands

in stark conflict with that of four other circuits. The unsound-

ness of the Seventh Circuit position is further highlighted by the

irrational consequences which are effected by that position.

In a separate opinion by Judge Campbell in the Lewis case

(473 F. 2d 576-9) some of these consequences are noted. First,

it was observed that the impact of the position is to thrust the

federal courts into the administration and daily operations of

state and local government, converting the federal judiciary into

a “super civil service commission” for all state and local em-

ployees not covered by civil service law. It was estimated that

the number of trials and appeals which could arise incident to

the Lewis case alone, from one department of a State and one

change of administration in that department totalled almost

2,000. As Judge Campbell stated, the volume of potential fed-

eral litigation resulting “truly becomes catastrophic”.

In addition the difficulty in fashioning appropriate and work-

able judicial standards for distinguishing between “policy mak-

ing” and “non-policy making” positions is obvious. Moreover,

it results in the constitutional rights of individuals being gov-

erned by the nature of their employment and accordingly the

establishment of a doctrine of a “sliding scale” of constitutional

rights according to rank, title, job description or duties, and

whether in or out of government.

Finally Judge Campbell noted the vexing problem which

emerges concerning the “burden of proof” standard in such

cases. This results from the fact that since a “civil service system”

cannot be judicially imposed on a state or local government, the

public employer cannot be compelled to explain the reasons

for termination of employment.

While other examples of irrational results could be catalogued,

it would seem that the basic falacy in the “policy”—‘“non-policy

making” distinction created by the Seventh Circuit, lies in its

implicit assumption that loyalty is only important to effective

execution of governmental office at the high eschelons of em-

ployment. We would submit in this regard that while the

General and his Staff map the strategy, it is the soldier in the

field who fights the battle. It would seem manifest that loyalty

at the “battle field” level is as important and indeed essential as

at the “headquarters” level!

E. The Patronage System.

The patronage system per se is not “on trial” in che case at

bar. It would, however, be naive to think that the popular

conception of the “evils” of that system are not a factor bear-

ing upon the resolution of the true issue herein. Accordingly,

the following observation and authorities are submitted relative

to the “system” and, the question of the functions of the judi-

Clary in respect thereto.

It is fundamental that social or political reform is not the

proper function of the judiciary, but rather is the function of

the executive or legislative branches of government. As this

Court itself stated in discussing the role of the judiciary in the

context of political activities and the patronage system in par-

ticular in United Public Workers v. Mitchell, 330 U. S. 75 at

page 89:

“As is well known the federal courts established pursuant

to Article HI of the Constitution do not render advisory

opinions. For adjudication of constitutional issues ‘con-

crete legal issues, presented in actual cases, not abstrac-

tion’ are requisite. This is as true of declatory judgments

as any other field. These appeilants seem clearly to seek ad-

visory opinions upon board claims of rights protected by

the First, Fifth. Ninth and Tenth Amendments to the Con-

stitution.”

“The Constitution allots the nation’s judicial power to the

federal courts. Unless these courts respect the limits of that

unique authority, they intrude upon powers vested in the

legislative or executive branches. Judicial adherence to

the doctrine of the separation of powers preserves the courts

for the decision of issues between litigants, capable of

effective determination. Judicial exposition upon political

proposals is permissible only when necessary to decide

definite issues between litigants. When the courts act con-

tinually within these constitutionally imposed boundaries

of their power, their ability to perform their function as a

balance for the people’s protection against abuse of power

by other branches of government remains unimpaired.

Should the courts seek to expand their power so as to bring

under their jurisdiction ill defined controversies over Con-

stitutional issues, they would become the organ of political

theories.”

And in discussing the proper branch of government for the

resolution of questions involving the patronage system, public

employment and political activities, the court stated in Mitchell,

supra, at page 99:

“Congress and the President are responsible for an efficient

public service. If, in their judgment, efficiency may be best

obtained by prohibiting active participation by . . . employ-

ees in politics as party officers or workers, we see no con-

stitutional objection.”

And as the court further stated with respect to the need or

the extent of the regulation of political activities of public

employees, at page 102:

“The use of the constitutional power of regulation is for

Congress, not for the courts .. .”

“The determination of the extent to which political activi-

ties of governmental employees shall be regulated lies

primarily with Congress.”

Abraham Lincoln, as well as our founding fathers, Wash-

ington, Adams and Jefferson, were unequivocally committed to

the proposition that under our form of government, executive

office must posesss the power of appointment and removal based

on considerations of political party, philosophies or beliefs.

(Fish, The Civil Service and the Patronage, (2nd pub’n. 1963)

pp. 7, 13, 23, 27, 172).

Moving into modern times, relative to the Roosevelt admin-

istration in 1930's, it is stated in Farley, Patronage And The

New Deal, American Magazine (Sept. 1938), at page 76:

“Some of the greatest troubles the President has had were

caused by subordinate officials who were in sharp disagree-

ment with his policies and, rightly or wrongly, were sabo-

taging the job he was trying to acomplish.”

And as the author stated at page 78:

“To my way of thinking . . . [the patronage system] is

the most democratic way of all and, in the long run, the

best way of getting competent people.” (Insert for clarity

and emphasis added).

In even more contemporary times, then Senator Paul H.

Douglas of Illinois had comments on the patronage system. In

Douglas, New Republic, July 14, 1952, it is stated at page 4:

“In short, I am for civil service but not for having civil

service dominate public employment 100 percent. That

would give us the bureaucracy of Germany and France

which I do not regard as ideal.”

“But I would like to have you consider just how long

most liberals would be able to last in Congress if you

Stripped us of all patronage, as you desire. We who try

to defend the interests of the people, the consumers and the

taxpayers commonly face the powerful opposition of the

special interest groups which will spend enormous sums

of money to defeat us ... If we are to survive we need

some support rooted in gratitude for material fovors which

at the same time do not injure the general public.”

Another aspect of “special interest groups” and the patronage

system comes into play in the context of the argument that the

taxpayer bears the cost of political parties through the system.

However, as is stated in Schoen, Politics, Patronage and The

Constitution, 3 Ind. L. F. 35 at page 64, footnote 103:

“The patronage system seemingly makes the taxpayer

contribute to a party without his consent, for it is the tax-

payers money that pay the employee’s salaries. But it is

better than having the party totally committed to people

who own oil wells or airlines.” (Emphasis added).

The argument has also been advocated that the abolition

of the patronage system would improve the quality of govern-

ment through career employees. Fish, supra, makes the following

observation in this regard at page 233:

“(under patronage) ... any positions might lead anywhere,

and that quickly; removal was constantly impending; gov-

ernment service was speculative, and because of the oppor-

tunities it afforded attracted clever, sometimes brilliant,

men. Now (under civil servage) it offers, in the main, the

advantage of steady, light employment at a moderate re-

muneration and attracts the steady-going and unimagina-

tive.” (Insert and emphasis added).

To the same effect is the author’s conclusion in Wilson, “The

Bureaucracy Problem”, Public Interest No. 6 (Win. 1967),

where it is stated at page 5:

“To be responsive, one must be willing to run risks, and the

career civil service is not ordinarily attractive to people with

a taste for risk.”

Another area of contrast between the patronage system and

its alternative is reflected in an article by Jean J. Couturier,

the Executive Director of the National Civil Service League.

In Couturier, “Patronage Versus Performance—The Balance

Sheet of Civil Service Reform’, Good Government, Fall 1967,

the author states at page 15:

“Public employment was historically considered a sacred

trust. It has also been thought of as a training ground for

the disadvantaged and a sevrce of employment for the

needy. Further, as distinguished from the area of political

patronage, it has been thought of as a place to reward

those who have done great service to their society. There

is pressing need to rethink these concept if we are to have

aaa

the most efficient possible public service. If it is desirable

to in some way make public employment a social tool,

such as through veterans’ preference or residence require-

ments, the scope and methods of so doing must be evaluated

and the limits defined.”

And in further discussing the results of overemphasis on civil

service systems, he states:

“Ironically, merit systems have all too often been perverted

to protect and provide a sanctuary for those on payroll.

While development of career concepts is fundamental to

the success of any large enterprise, these concepts should

not be manipulated to prevent entry of competent people.

All too often civil service selection systems are effectively

closed corporations.”

It is ironic that in these very areas where the civil service

fails, a decently run patronage system excels: 1) opportunity

and training ground for the disadvantaged; 2) a source of

employment for the needy; 3) the disabled veteran; 4) veterans’

preference; 5) residence requirements for broad based represen-

tation in public office. Samuel Lubell has also commented on

this aspect of the patronage system. In Lubell, The Future of

American Politics, Third Edition, 1965, he states at page 85:

“Patronage is peculiarly important for minority groups,

involving much more than the mere spoils of office. Each

first appointment given a member of any underdog element

is a boost in that element's struggle for social acceptance.

- It means that another barrier to their advance has been

lifted, another shut door has swung open.”

And as is stated in Moynihan and Wilson, “Patronage in New

York State, 1955-1959", Amer. Pol. Sci. Rev., Vol. 58, No.

2 (June 1964), at page 296:

‘Recognizing certain groups in the community by appoint-

ing some of their members to office has long been thought

to be a principal function of patronage.”

Still other observations on the patronage system can be

noted.

In White and Smith, Politics and Public Service (1939) it

is stated at page 85:

“Professor William Y. Elliott, of Harvard University, who

sees no alternative to executive leadership but who hates

the purchase of consent by patronage, can find no other

means of securing effective political leadership except by

a complete abandonment of the whole presidential system

in favor of cabinet government on the English model.

Thus greatly rises the price of freedom from patronage

and there is ground for doubt whether even this change

would produce the desired result.

In Key, Politics, Parties and Pressure Groups (5th Ed. 1964),

the author states at page 369:

“The truth is that we have contrived no system for the

support of party that does not place considerable reliance

on patronage. The party organization makes a democratic

government work and charges a price for its services.

Sometimes it becomes corrupt and levies an exorbitant

charge. Fortunately not all political organizations are

corrupt, and over the long run the spoils system has come

to operate within narrower bounds. Yet until we invent

some other system of political financing or new incentives

for party service, the government, directly or indirectly,

will contribute to the support of party activity.”

While the above is just a sampling of the literature on the

patronage system, it is submitted that it represents an objective

summary. While the patronage system has produced some

abuses, it has also performed significant social, economic and

political functions. To abolish it for the former, and in spite

of the latter again brings to mind the words of Justice Frank-

furter, who noted in the Douds case, at page 419:

“.. . one should not throw out the baby with the bath or

burn the house in order to roast the pig.” (Emphasis

added).

As noted earlier, the problems involved are legislative in

nature and to date no satisfactory substitute has been conceived

by man.

Il.

A PRELIMINARY INJUNCTION CANNOT PROPERLY BE

GRANTED HEREIN.

The Court of Appeals essentially held that since there was

a reasonable probability of respondents prevailing on the merits,

a preliminary injunction could properly be granted. In so doing,

the court ignored the unique issue of public interest herein and

traditional principles of federal equity power.

A. If an Injunction Were Granted, Irreparable Injury Would

Be Suffered by the Defendants and the General Public.

In considering whether a preliminary injunction shall issue,

the court must also consider whether an injunction will cause

substantial harm to the defendant or to the public. Eastern Air-

line Vv. Civil Aeronautics Board, et al., 261 F. 2d 830 (2nd Cir.

1958). The harm resulting from an injunction in this case will

substantially injure the public generally as well as the de-

fendants, because an injunction would seriously curtail the

effectiveness of a major Cook County law enforcement office.

If an injunction issued, the court would be required to hold

hearings to review each and every instance of hiring, firing,

promoting or demotion in the Sheriff's Office during the pen-

dency of the injunction in each instance where the plaintiffs

alleged political considerations were involved in the action. In

those cases where the basis for hiring or firing involved con-

fidential and privileged law enforcement information, such con-

fidential information would have to be disclosed in order to

explain the reason for the hiring or discharge. The damages to

the defendants and the public are so prevading that it is not

possible to ascertain the amount of bond that would have to

be posted by the plaintiffs in compliance with Rule 65(c) of

the Federal Rules of Civil Procedure.

The factors which the courts consider in granting injunctive

relief in equity litigation between private parties differ from

those considered in actions for injunctive retief where the

public interest is involved. Chief Justice Stone in Yakus Vv.

United States, 321 U. S. 414, 64 S. Ct. 660 (1944) stated:

“When an injunction is asked which will adversely affect a

public interest for whose impairment, even temporary, an

injunctive bond cannot compensate, the court may in the

public interest withhold relief until a final determination

of the rights of the parties, though the postponement may

be burdensome to the plaintiff . . . this is but another

application of the principle, declared in Virginia R. Co. v.

System Federation, 300 U. S. 515, 552, 57 S. Ct. 592,

81 L. Ed 789, that ‘courts of equity may, and frequently

do, go much further both to give and withhold relief in

furtherance of the public interest, than they are accustomed

to go when only private interests are involved.’ ” (Emphasis

added. )

In Gaines Dry Cleaners v. City of Chicago, 123 F. 2d 104

(7th Cir. 1941) the plaintiff sought to restrain the City of

Chicago from interfering with the operations of its business. In

affirming the trial court denial of the motion for an injunction

the court stated:

“A federal court will rarely interfere, through temporary

(or permanent) injunction, with the conduct of municipal

government by the city’s administrative officers.” Page 105.

Injunctive relief is an awesome power New York C. & St. L.

R. Co. Vv. Brotherhood of Local Firemen & Enginemen, 358 F.

2d 464, 469 (6th Cir. 1966) and a drastic remedy requiring

courts to proceed with caution before granting such relief.

Progress Development Corp. Vv. Mitchell, 182 F. Supp. 681, 711

(N. D. Ill. 1960), rev. in part on other grounds 286 F. 2d 222

(7th Cir. 1961). If such relief were granted in this case, the

public, rather than the plaintiffs, would be irreparably injured.

ee Se er

B. Federal Equity Power Is Limited by Traditional Principles

of Equity Jurisdiction.

The suit herein is, in essence, an action for equitable relief

against a state officer with respect to acts relating to public

employment in an elected state office.

The restrictions of federal equity power in such matters and

the limitation to traditional powers of equity cannot be

questioned.

As was stated in the case of /n re Sawyer, 124 U. S. 200

(1887) at page 212:

“It is equally well settled that a court of equity has no

jurisdiction over the appointment and removal of public

officers, whether the power of removal is vested, as well as

that of appointment, in executive or administrative boards

or Officers, or is intrusted to a judicial tribunal.”

And as the Court further stated (in quoting from an Illinois

Supreme Court decision) at page 214:

“... nor do matters of a political nature come within the

”

jurisdiction of the court of chancery...

In the case of Walton v. House of Representatives, 265 VU. S.

487, a claim of improper removal from state office by state

officers was involved and the charge that the removal was

prompted by “wrongful motive and prejudice” and that removal

would effect “a denial of . . . due process and equal protection

... under the Fourteenth Amendment . . .” The court stated at

page 490:

“A court of equity has no jurisdiction over the appoint-

ment and removal of public officers . . . and particularly

are the courts of the United States, sitting as courts of

equity, without jurisdiction over the appointment and re-

moval of state officers. . . .”

In addition the equitable maxim of clean hands is particularly

applicable herein. As the Supreme Court stated in Precision Inst.

Mie. Co. Vv. Automative M. M. Co., 324 U. S. 806, 814-15

(1945):

“The guiding doctrine in this case is the equitable maxim

that “he who comes into equity must come with clean

hands.” This maxim is far more than a mere banality. It

is a self-imposed ordinance that closes the doors of a court

of equity to one tainted with inequitableness or bad faith

relative to the matter in which he seeks relief, however im-

proper may have been the behavior of the defendant. That

doctrine is rooted in the historical concept of court of

equity as a vehicle for affirmatively enforcing the require-

ments of conscience and good faith. This presupposes a

refusal on its part to be “the abetter of iniquity.” Bein v.

Heath, 6 How. 228, 247, 12 L. Ed. 416.”

In the case at bar the plaintiffs seek equitable relief for the

protection of their employment because of assertedly improper,

unlawful and reprehensible conduct and practices on the part of

the defendants, and yet, plaintiffs admit that they obtained their

employment by virtue of the same conduct, practices and in-

deed the “system” which they so forcefully condemn.

CONCLUSION.

Wherefore, since the decision below involves a momentous,

far reaching question of federal constitutional law which should

be settled by this Court, and the decision below is in direct con-

flict with the decisions of other federal Courts of Appeal on

this same matter, it is prayed that this Petition for a Writ of

Certiorari be granted.

Respectfully submitted,

RAYMOND F. SIMON, BERNARD CAREY,

THOMAS A. FORAN, State’s Attorney of Cook County,

ROBERT E. WISS, Illinois,

c/o Foran, Wiss and Schultz, 500 Chicago Civic Center,

111 West Washington Street, Chicago, Illinois 60602,

Suite 1731, Attorney for Richard J.

Chicago, Illinois 60602, Elrod, Sheriff of Cook

Telephone: 368-8330, County, Illinois, Petitioner.

Attorneys for all other Petitioners. sufi DON G ARDNER,

THOMAS A. FORAN, Deputy State's Attorney,

ROBERT E. WISS, Civil Actions Bureau,

IAN H. LEVIN, , PAUL P. BIEBEL, JR.,

Of Counsel. Assistant State’s Attorney,

(312) 443-5460,

Of Counsel.

| APPENDIX.

EXHIBIT A.

IN THE UNITED STATES COURT OF APPEALS

For the Seventh Circuit.

JOHN BURNS, et al.,

Plaintiffs-A ppellants,

Nos. 71-1785, 72-1541 VS.

RICHARD J. ELROD, individually and as Sheriff of

Cook County, Illinois, et al.,

Defendants-A ppellees.

Appeal from the United States District Court for the Northern

District of Illinois, Eastern Division—No. 71 C 607.

JuLius J. HOFFMAN, Judge, WILLIAM J. BAUER, Judge.

Argued October 23, 1973—Decided January 30, 1975.

Before KILEY, Senior Circuit Judge;* CAMPBELL, Senior Dis-

trict Judge;** and GRANT, Senior District Judge.***

‘CAMPBELL, Senior District Judge. Plaintiffs appeal from

two orders of the United States District Court for the Northern

* Senior Circuit Judge Roger J. Kiley, deceased, did not par-

ticipate in the decision in this case.

** Senior District Judge William J. Campbell of the Northern

District of Illinois is sitting by designation.

*** Senior District Judge Robert A. Grant of the Northern Dis-

trict of Indiana is sitting by designation.

ee nr re

District of illinois, the first denying their motion for a prelimi-

nary injunction aid the second dismissing their complaint for

failure to state 1 claim upon which relief might be granted.

We reverse and reimand the cause for further proceedings not

inconsistent with the views expressed herein.

The individual plaintiffs, with one exception, were employees

of the Office of the Sheriff of Cook County, Illinois, on and

before December 7, 1970. They were not protected by Civil

Service or other laws against summary discharge from their

employment. Subsequent to December 7, 1970, the date on

which Richard J. Elrod took office as Sheriff of Cook County,

these plaintiffs were fired, allegedly because they were either

members of the Republican rather than the Democrat Party,

did not have the requisite political sponsorship from the Demo-

crat Party or because they failed to pledge their political alle-

giance to, work for or contribute to the Democrat Party. Sheriff

Elrod is alleged to be a Democrat. Plaintiff Fred Buckley, at

the time the complaint was filed, was still employed by the

Sheriff in Cook County, but alleged that he was in “imminent

danger” of being fired for the same reasons that allegedly caused

the other plaintiffs’ dismissals.

The defendants include Richard J. Elrod, Sheriff of Cook

County, at whose direction the dismissals are claimed to have

been made; Richard J. Daley, President of the Democratic

Organization of Cook County and Chairman of the Democratic

County Central Committee of Cook County; the Democratic

Organization of Cook County; and the Democratic County

Central Committee of Cook County. Plaintiffs charged that Mr.

Daley and the defendant organizations were also responsible for

the dismissals of plaintiffs, alleging that Mr. Elrod effected the

dismissals “under the direction and control of and in con-

spiracy” with these defendants.

The gravamen of plaintiffs’ complaint is that, because their

dismissals were based upon their political association and be-

liefs, defendants’ conduct violated their rights under the First

and Fourteenth Amendments of the Constitution of the United

States. As relief, plaintiffs prayed for a declaration of their

rights, compensatory and punitive damages, and preliminary

and permanent injunctions restraining defendants from condi-

tioning plaintiffs employment on constitutionally impermissible

grounds, restraining further dismissals on such grounds and

ordering reinstatement for unlawfully dismissed employees.

On the grounds that loss of employment did not constitute

a sufficient showing of irreparable injury and that plaintiffs

had an adequate remedy at law, Judge Hoffman denied the

plaintiffs’ motion for a preliminary injunction. Subsequently,

Judge Bauer granted defendants’ motion to dismiss for failure

to state a claim upon which relief might be granted. In reaching

this conclusion, Judge Bauer relied upon the decision of the

Court of Appeals for the Second Circuit in Alomar v. Dwyer,

447 F. 2d 482 (1971), cert. denied 404 U. S. 1020 (1972).

Alomar concluded that there was no constitutional prohibition

against the dismissal of governmental employees because of

their political affiliations or beliefs.

Subsequent to these orders of the district court, this Circuit

announced its decision in I/llinois State Employees Union v.

Lewis, 473 F. 2d 561 (1972), cert. denied, 410 U. S. 943

(1973) which refused to follow the reasoning in Alomar, hold-

ing instead that the dismissal of a public employee, not other-

wise protected by Civil Service, because of his or her political

associations or beliefs violates the First and Fourteenth Amend-

ments of the Constitution of the United States. Although

defendants argue that Lewis was wrongly decided and invite

our reconsideration thereof,’ we decline to do so for the scholarly

and persuasive reasons articulated in Judge Stevens opinion in

Lewis.* Plaintiffs’ allegations that they were fired or threatened

1. See, Nunnery v. Barber, 503 F. 2 1349 (4th Cir. 1974).

2. See also, Note, Patronage Dismissals: Constitutional Limits

and Political Justifications, 41 U. Chi. L. Rev. 297 (1974).

with dismissal because they belonged to a political party other

than that of the office holder’s political party, state a legally

cognizable claim entitling them to an opportunity to prove their

case.

Defendant Elrod resists this conclusion on the ground that

under the rationale of Lewis, the plaintiffs occupy “policy-

making” positions as a matter of law. It is maintained that the

plaintiffs were deputy sheriffs and that, under Illinois law, this

makes them public officials rather than public employees. Lewis

recognized “the public executives right to use political phi-

losophy or affiliation as one criteria in the selection of policy-

making officials” and that “considerations of personal loyalty,

or other factors besides determination of policy, may justify

the employment of political associates in certain positions.”

Illinois State Employees Union v. Lewis, 473 F. 2d 561, 574

(1972). These factors were characterized as a justification for

an otherwise impermissible dismissal.

Defendant Elrod reasons that since deputy sheriffs are public

officials their dismissal for partisan political reasons is justified

under Lewis. We fail to see how the label “public official” or

“public employee” advances the real inquiry on whether the

particular employee was “engaged directly or indirectly in the

formulation or implementation of policies” of the governmental

office or agency involved. IJllinois State Employee Union v.

Lewis, 473 F. 2d 561, 578 (Campbell, J., concurring) (1972).

The “justification” or defense turns on the specific duties and

responsibilities of the particular employee, not his title. More-

over, it appears that the basis for describing deputy sheriffs as

“public officials” no longer exists in Illinois, as Section 9 of

Article X of the 1870 Constitution of Illinois was not carried

over into the 1970 Constitution of Illinois. We conclude, there-

fore, that the issue of whether plaintiffs were policy-making

employees who may be dismissed for partisan political reasons

is a matter of factual defense to be established by defendants

at trial.*

We conside: next the question concerning the denial of plain-

tiffs motion for a preliminary injunction. The district court's

order, by holding that the loss of employment does not con-

Stitute sufficient irreparable harm and that the plaintiffs have an

adequate remedy at law, suggests that a preliminary injunction

would never be appropriate in this type of case. We must reject

this conclusion, for clearly more is involved than a simple loss

of employment. What lies at the heart of these cases is the

constitutional right of governmental employees to associate

freely with political groups of their choice without official re-

prisal for such affiliation. See //linois State Employees Union v.

Lewis, 473 F. 2d 561 (1972), cert. denied, 410 U. S. 943

(1973); Kiiskila v. Nichols, 433 F. 2d 745 (7th Cir. 1970).

Inasmuch as this case involves First Amendment rights of asso-

ciation which must be carefully guarded against infringement

by public office holders, we judge that injunctive relief is clearly

appropriate in these cases. Since, under Lewis, plaintiffs have

made a sufficient showing of probability of success on the merits,

the cause is remanded to the district court with instructions to

enter appropriate preliminary injunctive relief during the pend-

ency of this cause.

The complaint here was filed by plaintiffs “on behalf of them-

selves and all other persons who were employees of the Sheriff

of Cook County on December 7, 1970 and who were not pro-

tected by Civil Service or other laws against arbitrary discharge

from their employment.” The district court made no deter-

mination regarding the appropriateness of the class action

vehicle. As in Lewis, we observe that:

“Whether the district court should now determine that a

class action is appropriate, or if so, how the class or

3. See e.g., Indiana State Employees Ass'n, Inc. v. Negley, 365

F. Supp. 225 (S. D. Ind. 1973), aff'd £91 F. 2d 1239 (7th Cir.

1974).

Aé

classes should be defined, either for discovery or trial pur-

poses, are matters best apprised by the district court in the

first instance.” J/linois State Employees Union v. Lewis,

473 F. 2d 561, 576 (1972).

Although the class action question must first be determined

by the district court, we perceive some threshold difficulties at-

tending that determination. While questions of law may be

common to class members, factual issues relating to the reasons

for discharge may vary depending upon the individual, as may

the asserted justification that an individual occupied a policy

making position. Finally, assuming plaintiffs can establish lia-

bility, the issue of appropriate relief may depend upon factual

matters unique to various members of the asserted class. In

making these observations, we express no views on the district

court's ultimate determination of the class action issue. Rather,

they are intended to illustrate the topics of inquiry that will

doubtless occupy the district judge’s attention on remand.

For the reasons stated, the two orders of the district court

appealed from are reversed and the cause is remanded to the

district court for further proceedings not inconsistent herewith.

REVERSED AND REMANDED.

See

EXHIBIT B.

UNITED STATES COURT OF APPEALS

For the Seventh Circuit.

Chicago, Illinois 60604.

April 24, 1975.

Before

Hon. WILLIAM J. CAMPBELL, SR., District Judge

Hon. ROBERT A. GRANT, SR., District Judge

JOHN BURNS, “+p

Plaintiffs-A ppellants, | Appeal from the United

States District Court

VS. : for the Northern Dis-

No. 71-1285, 72-1541 trict of Illinois,

Eastern Division.

RICHARD J. ELROD, etc., et al., (71 C 607)

Defendants-A ppellees.

On consideration of the petition for rehearing and suggestion

that it be reheard en banc filed in the above-entitled cause, no

judge in active service having requested a vote thereon, nor any

judge having voted to grant the suggestion, and all of members

of the panel having voted to deny a rehearing,

It Is ORDERED that the petition for a rehearing in the above-

entitled cause be, and the same is hereby, DENIED.

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