Appendix — Wren v. Jones

Otlice-Supreme Court, WS,

’ IT LED

80-2088 JUN 10 1981

No. ALEXANL .:< L. STEVAS,

re

3n the

Supreme Court of the United States

Octoser Term, 1980

LEODA WREN, et al.,

Petitioners,

NOLAN JONES, et al.,

Respondents.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Seventh Circuit

PETITIONERS’ APPENDIX

Dowatp Pace Moors

One IBM Plaza

Suite 1414

Chicago, Illinois 60611

Counsel of Record

for Petitioners

Wittum S. Haney

Sortinc, Norrurup, Hanna,

CuLLeN AND Cocuran, Lp.

800 Illinois Building

Springfield, Illinois 62705

Counsel for Petitioners

The Scheffer Press, Inc.—(312) 263-6850

—

APPENDIX A

In THE

Unirep States Court Or APPEALS

For Tue Seventu Circuit

Nos. 79-2254, 79-2324, 80-1131, 80-1132

Ceci, WREN, ET AL.,

Plaintiff s-Appellees-Cross Appellants,

v.

NoLan JONES, ET. AL.,

Defendants-Appellants-Cross Appellees.

Appeal from the United States District Court for the

Southern District of Illinois, Springfield Division.

No. S-CIV-73-204—J. Watpo AckerMaAN, Judge.

Arcuep June 6, 1980—Decipen December 10, 1980

Before Swycert, Cupany, Circuit Judges, and Grayt,

Senior District Judge.*

Per Curiam. This case involves allegations that

twenty-six employees of the State of Illinois were dis-

charged for political reasons in violation of their right

to free association, due process and eqaul protection as

guaranteed by the First and Fourteenth Amendments.

Plaintiffs are twenty-six state employees who, according

to defendants, were necessarily “laid off;” twenty-five

*Honorable Robert A. Grant, Senior District Judge

of the United States District Court for the Northern

District of Indiana, is sitting by designation.

=

from the Illinois Department of Transportation (IDOT),

and one from the Illinois Department of Mental Health

(DMH). Defendants are either current or past officers

or employees of the IDOT, DMH or Illinois Department

of Personnel (IDOP).’

I. Background

In 1969, a lawsuit captioned Bradley, et al. v. Cellini,

et al.* was filed in an Illinois State Cireuit Court. The

Bradley case was a mandamus action by former employees

who had been discharged in May of 1969 from the IDOT

and DMH. In November of 1968, Miriam Ringo, the

Director of Personnel under the administration of Govern-

or Shapiro, a Democrat, had extended civil service pro-

tection, formally called Jurisdiction B of the Personnel

Code, to the positions occupied by the Bradley plaintiffs.

However, in January 1969, Richard B. Ogilvie, a Republi-

can, became Governor, and in February of 1969 his Direc-

tor of Personnel expunged former Director Ringo’s exten-

sion of Jurisdiction B. Between April and June 1969, all

Democratic employees in the IDOT maintenance and

traffic units, approximately 3,000 workers, were discharged

as “not acceptable to the agency” and were replaced by

Republican workers. Twenty-five of the plaintiffs in the

suit here before us were members of this group of dis-

charged workers. On the other hand, the Bradley plaintiffs

* Langhorne Bond, individually and as former Secretary

to IDOT; the present Secretary of IDOT, John Kramer;

the former administrative assistant to Bond, Brian Han-

nigan; IDOT District 9 assistant district engineer,

Richard Miley; IDOT District 9 business monager,

Donald Shelton; the former Director of IDOP, Noian B.

Jones; the present Director of IDOP, William R. Boys;

IDOP chief field officer, Robert Rhoads; an IDOP em-

ores, David Knox; the present Director of DMH,

obert deVito; and the former administrative aid to the

Director of DMH, Alfred P. Ronan.

* Circuit Court of Sangamon County, No. 2795-69,

re

consisted of 27° maintenance and traffic workers from

District 9 of the IDOT and three workers from the DMH

who had been terminated by the Ogilvie administration.

On April 9, 1973, Illinois Cireuit Judge Paul Vertic-

chio issued an opinion holding that the termination of

the Bradley plaintiffs was without cause, and contrary

to the Personnel Code, as well as in violation of the

rules of the Department of Personnel. Judge Verticchio

thereupon held that the Ogilvie administration’s expunge-

ment of the Jurisdiction B extension was “void and of

no effect.” As part of the court-ordered remedy, the heads

of IDOT, DMH and IDOP were directed to:

restore and return each of the [Bradley] Plaintiffs

to the position and title held by such Plaintiff on the

date of his discharge from said position or to dis-

charge each Plaintiff in accordance with The Personnel

Code and Rules of the Department of Personnel.‘

That writ of Mandamus, entered May 30, 1973, added

that “Famure To pO SO WILL SUBJECT YOU TO PUNISHMENT

FOR CONTEMPT OF THIS COURT.”

While the Bradley litigation was pending, Governor

Ogilvie’s Director of Personnel on November 28, 1972,

once again extended Jurisdiction B protection to the

relevant positions. Coming full circle politically, the new

Democratic administration of Governor Walker, in No-

vember 1973, acting thru their new Director of Personnel

and a defendant in the case at bar, again attempted to

remove the positions from civil service coverage, but the

Illinois Civil Service Commission refused to permit the

removal. It is apparent that each successive administra.

tion, since 1968, has attempted to remove the patronage

employees inherited from the former administration, place

its own patronage people in those positions, and then to

extend civil service coverage to its own new employees.

*One of the plaintiffs chose not to return.

* Judgment Order filed May 3, 1973 in Circuit Court,

Sangamon County, No. 2795-

cml aie

In June of 1973, the State of Illinois was experiencing

financial restrictions for fiscal year 1974 (July 1, 1973-

June 30, 1974). The actual amount approved by the legis-

lature for personnel services in the IDOT’s Maintenance

and Traffic Units was significantly smaller than had been

requested. Consquently, approximately 1,000 state em-

ployees were laid off in June 1973, 540 of whom were

IDOT employees. In this restrictive fiscal setting,’ the

defendant State officials were faced with the Bradley

court’s mandate to reinstate twenty-five workers, or face

the possible consequences of punishment for Contempt

of the Sangamon County Cireuit Court.

If. Implementation

Under the Bradley order, the officials in charge of the

IDOT and DMH were then confronted with the specter

of having 50 employees to do work formerly performed

by 25 employees. They determined that it was necessary

to layoff a number of employees equivalent to the number

of those returning Bradley plaintiffs. The parties have

stipulated that but for the entry of the Bradley order,

none of the plaintiffs in the case at bar were scheduled

to be laid off for the fiscal year ending June 30, 1973.

In selecting those employees for ‘‘lay off,’’ the defendant

Robert Rhoads, the Field Officer of the IDOP, made the

initial determination that those persons who actually re-

placed the Bradley plaintiffs in 1969 should be chosen.

After consultation with Berwyn Hanley, an assistant to

the Director of Personnel at the IDOPs’ downtown

Springfield office; with Brian Hannigan, Assistant Secre-

tary of the IDOT; Michael Waters, who served as liaison

between the IDOP and the [Illinois Attorney General’s

* Approximately 10.4% below the proposed budget.

* Although the district court made the general conclu-

sion that “defendant’s evidence does not establish to my

satisfaction, that fiscal restraints required the layoff of a

number of current employees equivalent to the number

of Bradley plaintiffs”, 457 F. Supp. at 243, as developed

below, we hold that finding to be clearly erroneous.

a, pon

office; and Assistant Attorney General Lee Martin, the

layoffs were implemented in the following fashion: in

the IDOT, 15 persons who directly replaced the Bradley

plaintiffs were found to still be in the positions formerly

held by the Bradley plaintiffs; six persons were replace-

ments for men who had actually replaced the Bradley

plaintiffs in 1969; and, in four instances where the posi-

tion could not be identified precisely, persons were laid

off on a random basis from the returning Bradley plain-

tiffs’ team section and class, with consideration given to

performance. In the DMH, the last person hired was

laid off. Thereafter these twenty-six employees (the Wren

plaintiffs) filed the present action for damages and in-

junctive relief under 42 U.S.C. $1983, alleging violation

of their rights under the First and Fourteenth Amend-

ments. The case was tried without a jury and during

trial the defendants agreed to reinstate the plaintiffs

pending final adjudication of the case. On August 4, 1978

the district court entered its Memorandum Order’ finding

that defendants had violated plaintiffs’ Due Process and

First Amendment rights and ordering the then incumbent

agency heads, Kramer, Boys, and deVito, to reinstate

the plaintiffs. The district court also found defendants

Hannigan and Rhoads were individually liable to the

plaintiffs discharged from the IDOT for violation of their

First Amendment rights, but the court reserved judgment

on the same question as to defendants Bond, Miley and

Shelton. The court dismissed defendants Jones, Knox,

and Ronan. On September 17, 1979, the district court

entered an order assessing approximately $393,000 in

damages against Rhoads and Hannigan, in addition to

costs and attorney fees.

Defendants Hannigan and Rhoads have appealed the

award of damages and defendants Boys, Kramer and

deVito have appealed the reinstatement order. Plaintiffs

have cross-appealed the dismissal of defendants Jones,

Knox and Ronan as well as the failure to award overtime

"Reported at 457 F.Supp. 234.

‘alu ies

damages and the allocation of attorney fees. The State

of Illinois, although not a party, has been permitted to

file a brief as Amicus Curiae, wherein the arguments of

defendants are supported.

III. First Amendment

As in the court below, plaintiffs present two First

Amendment arguments. First, that their separation from

State service was in furtherance of a patronage program,

violating their right to free association under the rationale

of Elrod v. Burns, 427 U.S. 347 (1976) and Illinois State

' Employees Union, Council 34 v. Lewis, 473 F.2d 561 (7th

Cir. 1972) cert. denied, 410 U.S. 928 (1973). Secondly,

plaintiffs assert that defendants denied them re-employ-

ment opportunities in furtherance of a patronage pro-

gram.

Initially, we will review those cases that have addressed

the conflict between political patronage and the First

Amendment.

In Illinois State Employees Union, Council 34 v. Lewis,

supra, a group of state employees who held non-civil ser-

vice, non-confidential positions were discharged by a new

Republican Secretary of State in conjunction with the

Ogilvie administration. The discharged employees sought

reinstatement and backpay, alleging violation of the First

and Fourteenth Amendments. The district court, however,

entered summary judgment for the defendant state

officials. In reversing and remanding for further proceed-

ings, then Circuit Judge, now Justice Stevens, held that

the dismissal of non-civil service public employees due

to their political association or beliefs constitutes a viola-

tion of the First and Fourteenth Amendments. Judge

Stevens commented on the burden of proof involved when

First Amendment rights are partially curtailed:

If the conditions attached to public employment

merely involve some curtailment—as opposed to abject

surrender—of First Amendment rights, interests of

the State “if strong enough” may justify the condi-

= 7a —

tion. As a procedural matter, the burden of estab-

lishing such justification rests upon the defendant.

In view of the importance which the Court has con-

sistently attached to the First Amendment rights of

the citizenry, that burden is a heavy one. Without

such justification, the foregoing cases demonstrate

that plaintiffs have alleged an impermissible basis

for their discharge. We must therefore consider the

matter of justification. (footnotes omitted)

473 F.2d 561 at 572-73. The majority vote on the Lewis

panel came from Senior District Judge Campbell who

filed a concurring opinion wherein he stated 2 much

more restrictive allocation of the burden of proof:

Another vexing and potentially troublesome prob-

lem which emerges from our ruling concerns the

practical application of the burden of proof stan-

dard. It goes without saying, of course, that the

burden belongs to and remains with the dismissed

employee. It seems equally clear that since a civil

service system may not be judicially imposed upon

a state or local government, that a public employer

cannot be compelled to explain the reasons for

termination. Indeed, the imposition of such a

‘*‘burden of explanation’? would run counter to the

precise holding of the Supreme Court in Board of

Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33

L.Ed.2d 548 (1972). Thus, if a public employer

desires to stand silent by way of a general denial to

the employees’ allegations, the employee must

demonstrate by the clear and convincing weight of

the evidence that his dismissal resulted solely

because of his political associations. Such a burden

is a heavy one but in my view is necessitated by the

limited nature of the right Simdermann compels us

to recognize today—i.e., the right to be free from

summary dismissal only where the dismissal is

based solely upon a reason expressly proscribed by

the First Amendment to the Constitution.

473 F.2d at 579, :

ae

In Burns v. Elrod, 509 F.2d 1133 (7th Cir. 1975),

Republican deputy sheriffs brought suit for injunctive

and other relief against the newly elected Democratic

sheriff alleging they had been discharged in violation of

the First Amentment, for the sole reason that they were

not affiliated with or sponsored by the Democratic

party. The district court denied their motion for

preliminary injunction and dismissed the complaint. In

reversing, this court, in an opinion by Senior District

Judge Campbell, relied on Lewis, stating, ‘‘ 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’’ (footnotes omitted). 509

F.2d 1133, 1135. This statement could be interpreted as

a change in Judge Campbell’s position on the burden of

proof, although that burden of proof was not addressed

in the Burns v. Elrod opinion. In Elrod v. Burns, 427

U.S. 347 (1976), a plurality of the Supreme Court

affirmed the Seventh Circuit in an opinion by Justice

Brennan® which held that public employment, even

when viewed as a privilege rather than an inherent

right, cannot be conditioned on the surrender of

constitutionally protected rights, i.e., that the practice of

patronage dismissals imposes an unconstitutional con-

dition on the exercise of the freedom of political

association and belief. Justice Brennan, in attacking

patronage practices in general, applied a high level

scrutiny standard to determine whether a significant

impairment of these First Amendment freedoms could

be justified by countervailing state interests, expressly

rejecting a rational basis analysis. 427 U.S. at 362.

Justice Brennan summarized:

In short, if conditioning the retention of public

employment on the employee’s support of the in-

party is to survive constitutional challenge, it must

. further some vital government end by a means that

* Justice Brennan was joined by Justices White and

Marshall.

aw Og —

is least restrictive of freedom of belief and associa-

tion in achieving that end, and the benefit gained

must outweigh the loss of constitutionally protected

rights. (footnote omitted).

427 U.S. at 363.

The majority votes in Elrod came in Justice Stewart’s

concurrence’ which expressed no view on the question of

political hiring, and the consideration of patronage dis-

missals was limited:

The single substantive question involved in this

ease is whether a nonpolicymaking, nonconfidentiai

government employee can be discharged or threat-

ened with discharge from a job that he is satisfac-

torily performing upon the sole ground of his political

beliefs. I agree with the plurality that he cannot. See

Perry v. Sindermann, 408 U.S. 593, 597-598.

427 U.S. at 375.

In Branti v. Finkel, 100 S.Ct. 1287 (1980), the Court,

in a majority opinion by Justice Stevens” reaffirmed the

plurality opinion in Elrod. Branti involved two assistant

public defenders in Rockland County, New York, who

sought an injunction to preserve their positions as assis-

tant public defenders on the basis that the recently ap-

pointed Democratic County Public Defender was about to

discharge them solely because they were Republicans.

The district court permanently enjoined their termina-

tion, based as it was, upon the sole grounds of political

belief, finding that the newly appointed Public Defender

intended to replace the complaining assistants with Dem-

ocrats. Both the Second Circuit and the Supreme Court

affirmed. Justice Stevens, writing for the majority, stated:

If the First Amendment protects a public employee

from discharge based on what he has said, it must

* Justice Stewart was joined by Justice Blackmun.

%” Justice Stevens had not participated in the Seventh

Circuit Elrod decision.

— 10a —

also protect him from discharge based on what he

believes. Under this line of analysis, unless the Gov-

ernment can demonstrate ‘‘an overriding interest,’’

[citing Elrod] 427 U.S. at 368, 96 S.Ct. at 2687, ‘‘of

vital importance,’’ id. at 362, 96 S.Ct. at 2684, re-

quiring that a person’s private beliefs conform to

those of the hiring authority, his beliefs cannot be

the sole basis for depriving him of continued public

employment. (footnote omitted).

100 S.Ct. at 1293."

In all of the cases discussed above, the underlying fact

was that the employees were or were about to be dis-

charged solely on the basis of their political beliefs. In

the case at bar, the initial inquiry must be whether the

political association and beliefs of the Wren plaintiffs

were the sole basis of their layoffs. The short and simple

answer must be that the unusual facts of this case pre-

clude a finding that there was such a sole basis. As the

defendants point out, the Bradley order itself makes this

case unique. In view of the fiscal restrictions, the fact

that there were only Republicans in the affected units

and the further fact that no Democrats were hired into

similar full-time positions, requires a conclusion that any

potential motivation was, at most, just one of the factors

in their decision.

The issue now becomes: how much of a role must the

plaintiffs’ political association have played in the defen-

dants’ decision to engage in the layoffs in order to find

a First Amendment violation. The district court answered

that question and allocated the burden of proof by quoting

the following passage from Mt. Healthy City School Dis-

trict Bd. of Ed. v. Doyle: 429 U.S. 274, 287 (1977).

Initially, in this case, the burden was properly

placed upon respondent to show that his conduct was

™ Branti dealt with the question of whether certain em-

ployees had a confidential relationship with the employer

which would justify a patronage dismissal. Such a factual

question is not present in the case at bar,

=-= jig —

constitutionally protected, and this conduct was a

‘substantial factor’’—or, to put it in other words,

that it was a ‘‘motivating factor’’ [footnote omitted]

in the Board’s decision not to rehire him. Respon-

dent having carried that burden, however, the Dis-

trict Court should have gone on to determine whether

the Board had shown by a preponderance of the evi-

dence that it would have reached the same decision

as to respondent’s reemployment even in the absence

of the protected conduct.

Mt. Healthy involved an action brought by an unten-

ured school teacher who claimed that a school board’s

refusal to renew his contract violated his First Amend-

ment rights contending that his exercise of free speech

had played a substantial role in the decision not to re-

hire. While the plaintiff prevailed on that theory in the

district and circuit courts, the Supreme Court vacated

and remanded the case for application of the above-quoted

test. In explaining what the Court meant by ‘‘motivating

factor,’’ the case of Arlington Heights v. Metropolitan

Housing Corp., 429 U.S. 252 (1977) was cited. Arlington

Heights did not involve a First Amendment challenge,

but rather concerned an allegation that refusal to change

the zoning of land to permit construction of racially in-

tegrated housing, violated the Equal Protection Clause.

The court of appeals had reversed the district court,

holding that the Village’s refusal to rezone carried a

racially discriminatory effect and was, without more, un-

constitutional. In reversing, the Supreme Court com-

mented on the role a racially discriminatory motive must

play before a violation of the Equal Protection Clause

will be proved:

Our decision last Term in Washington v. Davis,

426 U.S. 229, 96 S.Ct. 2040, 48 L.Bd.2d 597 (1976),

made it clear that official action will not be held un-

constitutional solely because it results in a racially

disproportionate impact. ‘‘Disproportionate impact is

not irrelevant, but it is not the sole touchstone of

an invidious racial discrimination.’’ Jd. at 242, 96

== 193 .—

S.Ct. at 2049. Proof of racially discriminatory intent

or purpose is required to show a violation of the

Equal Protection Clause.

Davis does not require a plaintiff to prove that

the challenged action rested solely on racially dis-

criminatory purposes. Rarely can it be said that

a legislature or administrative body operating under

a broad mandate made a decision motivated solely

by a single concern, or even that a particular pur-

pose was the ‘‘dominant’’ or ‘‘primary’’ one. In

fact, it is because legislators and administrators are

properly concerned with balancing numerous com-

peting considerations that courts refrain from re-

viewing the merits of their decisions, absent a show-

ing of arbitrariness or irrationality. But racial dis-

crimination is not just another competing consider-

ation. When there is a proof that a discriminatory

purpose has been a motivating factor in the decision,

this judicial deference is no longer justified. (foot-

notes omitted).

429 U.S. at 264-266.

In summation, the Supreme Court stated:

Respondents simply failed to carry their burden

of proving that discriminatory purpose was a moti-

vating factor in the Village’s decision. This conclu-

sion ends the constitutional inquiry.

429 U.S. at 270-271.

In Givhan v. Western Line Consol. School Dist., 99

S.Ct. 693 (1979), the Court commented on its Mt. Healthy

holding. Givhan involved a dismissed school teacher who

sought reinstatement, partially on the grounds that her

right of free speech had been infringed. Specifically, she

had made comments on employment policies and practices

at the school which she believed to be racially discrimi-

natory. The Fifth Circuit reversed a district court finding

that the dismissal violated the teacher’s First Amend-

ment rights. The Supreme Court, in reversing and in

at Sia ses

clarifying that its Mt. Healthy holding covered private

communications between teacher and principal, first re-

viewed another case in which the Court faced the question

of whether a public employee’s exercise of free speech

was protected. The Givhan Court recounted a balancing

test used in Pickering v. Board of Education, 391 US.

563 (1968) :

In Pickering a teacher was discharged for pub-

licly criticizing, in a letter published in a local

newspaper, the school board’s handling of prior bond

issue proposals and its subsequent allocation of finan-

cial resources between the school’s educational and

athletic programs. Noting that the free speech rights

of public employees are not absolute, the Court held

that in determining whether a government em-

ployee’s speech is constitutionally protected, “the in-

terests of the [employee], as a citizen, in comment-

ing upon matters of public concern” must be balanced

against “the interest of the State, as an employer,

in promoting the efficiency of the public services it

performs through its employees,” Pickering v. Board

of Education, supra, 391. US. at 568, 88 S.Ct. at 1734.

99 S.Ct. at 696. The Givhan Court further restated its

test set down in Mt. Healthy and remanded the case for

application of this test:

In that case [Mt. Healthy] this Court rejected the

view that a public employee must be reinstated

whenever constitutionally protected conduct plays a

“substantial” part in the employer’s decision to ter-

minate. Such a rule would require reinstatement of

employees that the public employer would have dis-

missed even if the constitutionally protected conduct

had not occurred and, consequently, “could place an

employee in a better position as a result of the exer-

cise of constitutionally protected conduct than he

would have occupied had he done nothing.” 429 U.S.

at 285, 97 S.Ct. at 575. Thus, the Court held that

once the employee has shown that his constitutionally

protected conduct played a “substantial role in the

—14a—

employer’s decision not to rehire him, the employer

is entitled to show “by a preponderance of the evi-

dence that it would have reached the same decision,

as to [the employee’s] reemployment even in the

absence of the protected conduct. Id. at 287, 97 S.Ct.

at 576.

o 7 .

Since this case was tried before Mt. Healthy was

d sided, it is not surprising that respondents did

not attempt to prove in the District Court that the

decision not to rehire petitioner would have been

made even absent consideration of her “demands.”

Thus, the case came to the Court of Appeals in very

much the same posture as Mt. Healthy was presented

in this Court. And while the District Court found

that petitioner’s ‘‘criticism’’ was the ‘‘primary’’ rea-

son for the school district’s failure to rehire her, it

did not find that she would have been rehired but

for her criticism.

99 S.Ct. at 697. Although the Mt. Healthy test was to be

applied on remand in Givhan, the Second Circuit has

recently decided that, at least in some instances, they

prefer to apply the Pickering balancing test rather than

the Mt. Healthy test. Janusaitis v. Middlebury Volunteer

Fire Dept., 607 F.2d 17, 25 (2d Cir. 1979).

In Rosaly v. Ignacio, 593 F.2d 145 (1st Cir. 1979), the

First Circuit, facing a factual situation somewhat akin

to the case at bar, applied the Mt. Healthy and Givhan

holdings. In Rosaly, employees of the Puerto Rico High-

way Authority alleged that their terminations were po-

litically motivated, in violation of the First Amendment.

The terminations occurred after the New Progressive

Party lost the 1972 elections to the Popular Democratic

Party. After a verdict and judgment for plaintiffs, the

First Circuit reversed, holding that defendant officials

must be given the opportunity, under the Mt. Healthy

test, to prove that the terminations were necessitated by

a financial crisis in the Highway Authority and were

not due to their political affiliation:

— l5a —

The defendants maintained throughout the pro-

ceedings that the plaintiffs’ terminations were neces-

sitated by a financial crisis in the Highway Authority

and were not due in any way to their political] affilia-

tion. This, then, was a Mt. Healthy claim. The

court did not adequately treat this issue. It in-

cluded in its findings of fact plaintiffs’ compilation

of employee statistics which indicated that after

plaintiffs’ discharges the Department of Transporta-

tion granted a number of raises and promotions.

We acknowledge that circumstantial evidence may

be used to show discriminatory motive in a patron-

age dismissal case. Gabriel v. Benitez, 390 F.Supp.

988, 993 (D.P.R. 1975), aff’d sub nom., Rivera Mo-

rales v. Benitez de Rexach, 541 F.2d 882 (lst Cir.

1976). However, the recital of these numbers alone

does not establish conclusively a discriminatory mo-

tive, especially in light of the defendants’ alleged

economic justification for these increases, i.e., two

of the employees who received salary increases did

so because these employees took on additional duties

after the integration, resulting in an overall savings

in the department. But even if such evidence sup-

ports a finding of discriminatory motive, there was,

as far as the record shows, no application of the

Mt. Healthy test.

Although the record is lengthy, we do not feel

that it provides the proper basis for us to make the

factual determination called for in Givhan, supra,

sein US. at ......... 99 S.Ct. 693. The Givhan decision

adopted the procedural guidelines set out in Mt.

Healthy, swpra, 429 U.S. at 287, 97 S.Ct. 568, but

articulated more precisely the test to be applied.

Under Givhan, the initial burden is upon plaintiffs

to show that their conduct was constitutionally

protected. Plaintiffs must next establish that this

conduct was a ‘‘substantial factor’’ or a ‘‘motivating

factor’ in defendants’ decision to discharge them

from the Highway Authority.

— 16a —

If that is proven, the defendants have the burden

to show by a preponderance of the evidence that

they would have reached the same decision notwith-

standing the protected conduct. If the plaintiffs are

to recover, the court (or jury) must expressly find

that plaintiffs would not have been discharged ‘‘but

for’’ the constitutionally immunized activity. Giv-

han, supra, UB. BB cccceces , 99 S.Ct. 693. See

Mack v. Cape Elizabeth School Board, 553 F.2d 720,

722 (1st Cir. 1977).

593 F.2d at 148-149.

In summary, under Branti and Elrod, if political

association appears to be the sole basis for dismissal,

then a strict scrutiny analysis should be applied. Where,

as in the case at bar, political association was not the

sole basis for a personnel transaction, the Mt. Healthy

test should be applied to determine whether political

affiliation was the motivating factor as defined in

Village of Arlington Heights. However, as seen in Giv-

han and Janusaitis, applicaion of the Pickering balancing

test remains a possibility.

Applying the Mt. Healthy test, as restated in Rosaly,

supra, plaintiffs’ ‘‘conduct’’ was simply their member-

ship in the Republican party, and such political associa-

tion is clearly constitutionally protected. However, the

crucial burden is upon the plaintiffs to show that this

conduct was the motivating factor in the layoff decision.

Here we must determine whether the district court’s

finding that such conduct was the motivating factor is

clearly erroneous. We now hold, from a review of the

testimony and other evidence before the district court,

the finding that plaintiffs have satisfied their burden of

proving that political affiliation was the motivating fac-

tor in their discharge is clearly erroneous. To para-

phrase the Supreme Court, plaintiffs have simply failed

to carry their burden, and this conclusion must end the

constitutional inquiry. Assuming arguendo, that plain-

tiffs have satisfied the first part of the Mt. Healthy test,

we find that the defendants have, by a preponderance of

—17a—

the evidence, established that fiscal restraints required

a reduction in the affected units equivalent to the num-

ber of reinstated in Bradley employees, and that fiscal

restraints justified the failure to reemploy the plaintiffs

during the two year period after their layoffs. There-

fore, although the same employees may not have been

chosen, for example, had actual hire dates been used

rather than the common seniority date of May 1, 1972,”

the fact would remain that some of the employees in the

affected units would have to be laid off. The fact that

all potentially affected employees were Republican means

that the Wren plaintiffs’ political association was of

no consequence, especially in light of the fact that no

Democratic employees were hired into similar full-time

positions in the same class** during the two year period

following the dates of the layoffs.

If we were to apply the Pickering balancing test in

this case, we must balance the slight (if existent) in-

fringement of the Wren plaintiffs’ First Amendment

right to free political association versus the State’s clear

interest in promoting the efficiency of the public ser-

vices it performs through its public employees. Unlike a

discharge motivated by a school teacher’s overt exercise

of her right to free speech, e.g., Givhan, and unlike the

blatant firing of emplovees of the same political party as

a defeated incumbent, upon change in office, e.g., Bran-

ti, the Wren plaintiffs were Republicans chosen from a

larger group that consisted solely of Republicans and

there was no evidence adduced that the plaintiffs had

engaged in any political speech or association, other

than their being registered Republicans, which had

given rise to the personnel actions. The intrusion upon

the Wren plaintiffs’ First Amendment freedoms was

minimal, if existent.

"The date when civil service protections were ex-

tended to employees in the affected units.

We are not persuaded that summer junior laborers

or ‘‘ghost employees’’ are in the same class as the Wren

plaintiffs, : .

— 18a —

Even assuming that there was a minimal intrusion,

evaluating the State’s interest to determine whether

they are of greater weight, as stated before, the State

has a.clear interest in utilizing its financial resources in

an efficient manner. In the final analysis, that is what

this case comes down to, whether the State of Illinois

should have employed the Bradley plaintiffs without any

equivalent reduction in personnel. In view of the in-

voluntary requirement that the Bradley plaintiffs be

reinstated, and of the fiscal exigencies, we hold that the

State’s interest in maintaining prudent control over the

efficient use of their resources outweighs and minimal

impact on the plaintiffs’ right to political association.

At this point, we should comment on the district

court’s heavy reliance on the history of patronage in

Illinois politics. Although historical background is a

proper factor in determining present motivation, eg.,

Arlington Heights, supra, at 267, we believe that too

great an emphasis was placed on this factor, and we are

not persuaded that the political maneuverings of previ-

ous administrations, and even previous maneuverings of

some of the Wren defendants, can be said to be the

reason for the personnel actions here contested.

IV. Due Process

The following procedures were utilized in the case at

bar. On or about June 30, 1973, plaintiffs received notices

of their layoffs which read: “Layoff occasioned by Judge

Verticchio’s order in No. 2795-69 in the Circuit of Sanga-

mon County.” Under the Personnel Rules, each plaintiff

was entitled as a laid off certified employee to petition the

Director of Personnel within 15 days of receipt of the

layoff notice for a reconsideration of his decision approv-

ing the notice. As part of that procedure, the Director

was required to “review and investigate the application

of the personnel rules and validity of the layoff.” Per-

sonnel Rule 2-596. Written notice to the employee of the

final decision of the Director was required.

= eS

In the case at bar, defendants at first were confused

about the jurisdiction of the IDOP to review the layoffs

here because the actions occurred as the result of a court

order. Some of the men laid off filed a mandamus action

in the Circuit Court for Sangamon County seeking rein-

statement. However, there was testimony to the effect

that meetings were being scheduled as part of the recon-

sideration procedure for all of the laid-off employees who

requested them. Such a meeting for plaintiff Patterson

was held on September 28, 1973. Defendant Jones upheld

Patterson’s layoff and sent written notice of his decision

to Patterson’s attorney. No other meeting had been held

when this action was commenced on October 18, 1973, and

the parties stipulated that none would be held.

In finding that there was a violation of plaintiffs’ due

process rights which justified injunctive relief, the court

below stated:

Under the unique circumstances of this case, I

believe that plaintiffs’ rights to due process of law

were violated. The defendants’ response to the

Bradly order, and the manner in which Bradley

was implemented established the plaintiffs here as

necessary parties to the Bradley litigation. They were

not made party and thus were unable to protect

the interest they had in their employment. They

were denied due process of law.

457 F. Supp. at 239.

Plaintiffs contend here, as in the trial court, that, as

certified employees they had a property interest protected

by due process, that this property interest could not be

terminated without adequate notice and a prior hearing,

and that the prior hearing to which they were entitled

was either a judicial hearing in the context of being

parties to the Bradley case itself, a predismissal adminis-

trative hearing, or the discharge proceedings provided

under the Illinois Personnel Code.

— 0a —

Initially, we hold that the district court erred in finding

that the Wren plaintiffs were necessary parties to the

Bradley proceeding, and that they were denied due pro-

cess by not being joined. During the four year history

of the Bradley proceeding, it would have been imprac-

ticable to join as parties every possible employee who

might have been affected by the Bradley order. There

would have been hundreds of potentially affected work-

ers, with no certain way of determining which, if any,

would have to be laid off. Cordes v. Isaacs, 27 MN. 2d 383,

189 N.F.2d 236 (1963), stands for the proposition that

incumbent employees are not necessary parties to a pro-

ceeding for reinstatement of a former employee if the

reinstatement proceeding would not adjudicate the em-

ployment rights of the incumbents. Such is the case here,

in that the employment rights of the Wren plaintiffs

were not adjudicated in the Bradely proceeding. Only

upon implementation by the defendant State officials did

the Bradley order first affect the Wren plaintiffs. In

Powell v. Jones, 56 Ill. 2d 70, 305 N.E.2d 166 (1973), the

Illinois Supreme Court held that an employee discharged

for cause is entitled to more extensive procedures (e.g.,

Til. Rev. Stat. Ch. 127, 63b111) than is an employee laid

off for financial reasons (¢.g., Personnel Rules 2-596).

The Powell court described the post-layoff procedures that

are available in cases such as the one at bar, and held

that ordinarily there is no right to a hearing before a

layoff. This court has previously followed the Powell

decision. Mims v. Board of Education, 523 F.2d 711, 715

(7th Cir. 1975). We note that the Powell court specifically

limited its holding to situations that did not involve

allegations of political motivation. 56 Ill. 2d at 74, 305

N.E.2d at 168. However, where political allegations have

been found to be without merit, we will not grant relief

for failure to provide a pre-layoff hearing. We hold that

no pre-layoff hearing was required. In so ruling we are

mindful of the limited rule a federal court must take in

judging the procedures afforded a state employee in

personnel transactions. Bishop v. Wood, 426 U.S. 341

(1976).

—2a—

V. Conclusion

We find no merit in plaintiffs’ equal protection and

substantive due process argument, and our decisions above

moot the issues raised in plaintiffs’ cross-appeal.

Reversep Anno Remanvep to the District Court for

further proceedings in accordance with this opinion.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

JUDGMENT

December 10, 1980.

This cause was heard on the record from the United

States District Court for the Southern District of Illinois,

Springfield Division, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND AD-

JUDGED by this Court that the judgment of the said

District Court in this cause appealed from be, and the

same is hereby REVERSED AND REMANDED, in ac-

cordance with the opinion of this court filed this date

Each party is to bears its own costs on appeal.

— 22a —

In Tue

Unitep Srares Court Or Appgats

For Tue Seventu Circuit

Nos. 79-2254, 79-2324, 80-1131, 80-1132

Ceci. WREN, ET AL.,

Plaintiffs-Appellees-Cross Appellants,

Vv.

Notan JONES, ET AL.,

Defendants-Appellants-Cross Appellees.

ORDER DENYING REHEARING

March 12, 1981

On consideration of the petition for rehearing and

suggestion for rehearing en banc filed in the above-

entitled cause, no judge in active service has requested

a vote thereon, and all of the judges on the original panel

have voted to deny a rehearing.

Accordingly, IT IS ORDERED that the aforesaid peti-

tion for rehearing be, and the same is hereby DENIED.

=~

In THE

Unitep States Court Or AppEaLs

For Tue Seventu Circuit

Nos. 79-2254, 79-2324, 80-1131, 80-1132

Cecu, WREN, ET AL.,

Plaintiff s-Appellees-Cross Appellants,

Vv.

NoLaN JONES, ET AL.,

Defendants-Appellants-Cross Appellees.

ORDER

April 30, 1981

The Court ORDERS, sua sponte, that its opinion of

December 10, 1980, is hereby AMENDED to the follow-

ing extent:

On page 18 of the slip opinion, the last line of the

page, which previously ended with “none would be

held.” is hereby amended to read “none would be

held during the pendency of this litigation.”

On page 20, the line “We hold that no pre-layoff hearing

was required.’’ is amended to include footnote number 14,

the text of which is included below.

“ Plaintiffs-appellees claim they were denied the right

to post-layoff hearings, and request that these hearin

be resumed or damages awarded for this failure. We

do not reach or consider these contentions, leaving it to

the informed discretion of the trial judge to determine

what further proceedings, if any, are required.

—%a—

APPENDIX B

Cecil WREN et al., Plaintiffs,

Nolan JONES - al., Defendants.

No. S-Civ-73-204.

United States District Court,

S. D. Illinois, 8S. D.

Aug. 21, 1978

[236] MEMORANDUM ORDER

J. WALDO ACKERMAN, District Judge.

This action arises out of the separation of twenty-six

workers from State employment. The issue of liability

has been tried to the Court, sitting without a jury; has

been fully and ably briefed by the parties, and is now

ripe for decision. This Memorandum Order shall incor-

porate within its text the necessary findings of fact and

conclusions of law pursuant to F.R.Civ.P. 52(a).

Plaintiffs’ complaint is based on 42 U.S.C. § 1983. Juris-

diction is based on 28 U.S.C. 4 1343. The briefs and argu-

ments of the parties present a great many issues, but

those issues can generally be broken down into four

basic categories. The first three are distinguished by the

constitutional provision alleged to be violated, the first

amendment, the due process clause, and the equal pro-

tection clause. The fourth area concerns itself with the

availability to defendants of certain defenses and arises

only upon finding that one of the plaintiffs’ constitutional

rights were in fact violated. These defenses concern

qualified immunity and good faith. Because I find for

plaintiffs on the due process and first amendment issues,

little discussion of the equal protection questions is re-

quired and this opinion will deal primarily with the due

process, first amendment and individual liability issues.

con lla

I. Facts

Each of the twenty-six plaintiffs claims to be certified

employees within Jurisdiction B (ch. 127, Ill.Rev.Stat.

§§ 63b108b et seq.) of the Tllinois Personnel Code. Ch.

127, Ill.Rev.Stat. §§ 63b101 et seq. Twenty-five of the

twenty-six plaintiffs were employed in maintenance posi-

tions in the Illinois Department of Transportation (DOT).

The twenty-sixth plaintiff, Claris D. Barger, was em-

ployed as a maintenance equipment operator at the Anna

State Hospital in the Illinois Department of Mental

Health (DMH). Each of the plaintiffs passed the required

qualifying exams and successfully completed necessary

probationary periods.

On or about June 30, 1973 each of the plaintiffs was

separated from State employment by a personnel trans-

action denominated as 4 layoff. The reason for the layoff

on the official notice received by each plaintiff was as

follows:

Layoff occasioned by Judge Verticchio’s order in

No. 2795-69 in the Cireuit Court of Sangamon County.

The case mentioned in the layoff order is Bradley

et al. v. Cellini et al. (Circuit Court of Sangamon County

No. 2795-69). The Bradley case was a Mandamus action

filed in the Courts of Illinois by former employees who

had been discharged in May of 1969, from the Illinois

Departments of Transportation and Mental Health.

Illinois Cireuit Judge Paul C. Verticchio found that

the plaintiffs in that case had been discharged without

cause and contrary to the Illinois Personnel Code as

well as in violation of the rules of the Department of

Personnel.

Judge Verticchio ordered that each of the Bradley

plaintiffs be restored and returned to the position and

title held by them on the date of discharge or in the

alternative, that they be discharged in accordance with

the Personnel Code and Rules. A writ of Mandamus

then issued in aid of the judgment order. The writ was

directed to the agency heads involved in the original

action, Langhorne Bond, Secretary of Transportation,

LeRoy P. Levitt, Director of Mental Health and Nolan

B. Jones, Director of Personnel.

[237] Upon receipt of the Bradley order, Robert D.

Rhoads, Chief Personnel Officer, Field Services Division,

Illinois Department of Transportation, contacted Michael

Waters, Berwyn Hanley and Robert Boyd, all of the

Department of Personnel as well as Brian Hannigan,

Assistant to the Secretary of the Department of Trans-

portation, to determine how to comply. This group deter-

mined that since no reason to discharge the Bradley plain-

tiffs existed, they would have to be restored to their

former position and title. They also determined that a

like number of then current employees would have to be

laid off. Those persons subsequently laid off are plaintiffs

here.

Before reaching the method used to separate plaintiffs

from State service, it is necessary to put in historical

perspective the positions they held. These positions for

many years prior to 1968, were political patronage posi-

tions. In November of 1968, Mariam Ringo, Director of

Personnel, under the administration of Governor Shapiro,

a Democract, extended Jurisdiction B of the Personnel

Code to the positions, removing their patronage char-

acter. In February of 1969, however, the Director of

Personnel, J. Conrad Vanden Bosch, under the adminis-

tration of Governor Richard B. Ogilvie, a Republican,

ordered that the extension of Jurisdiction B made in

1968, was void and that any act taken under it be ex-

punged. On November 28, 1972, the Director of Personnel,

Allen Drazek, under the administration of Governor

Ogilvie, once again extended Jurisdiction B to these

same positions. At a later time, the Director of Personnel,

Nolan B. Jones, under the Democratic administration

of Daniel Walker, again sought to make these positions

exempt from the provisions of Jurisdiction B. But in a

hearing before the Illinois Civil Service Commission,

the order of Director Jones was invalidated,

— %a—

From this history it is apparent that the positions in

question were at one time patronage positions and that

each successive administration since 1968, has sought

to remove the holdover patronage employees from the

former administration, place its own patronage people

in those positions, and extend Civil Service protection

to the new employees.

Both the Bradley plaintiffs and the plaintiffs here freely

admit that they were originally hired as patronage em-

ployees. The Bradley plaintiffs were employed sometime

prior to December of 1968. Jurisdiction B was extended

to them by Director Ringo’s order and removed by

Director Vanden Bosch’s order. The plaintiffs here, were

employed after Director Vanden Bosch’s order and had

Jurisdiction B extended to them by the order of Director

Drazek.

In the Bradley case, Judge Verticchio ruled that Direc-

tor Vanden Bosch’s order which in effect, invalidated

Director Ringo’s order, was itself invalid, and required

the Bradley plaintiffs reinstated or discharged in accor-

dance with the personnel rules.

The original decision of Judge Verticchio was entered

on April 9, 1973. The actual manner of implementing

Judge Verticchio’s order was not, however, considered

until approximately June 1, 1973. At that time, it was

determined that it was necessary to separate a like num-

ber of current employees to make room for the returning

Bradley plaintiffs. In selecting those persons for separa-

tion, the defendant Robert Rhoads, the Field Officer of

the Personnel Department made the initial determination

that the dpartment should terminate those persons who

had — “viced or replaced” the Bradley plaintiffs

in 1969.

This intent was carried out in the Department of

Transportation by separating 15 of plaintiffs here who

were persons who had actually replaced Bradley plaintiffs

in 1969. Those employees are Caldwell, Brooks, Dickson,

Wren, R. Peeler, Lovellette, Casey, Simmons, Betts, Pat-

=

terson, Potter, Etheridge, Wenzel, Johnson, and W.

Peeler. Further, in the Department of Transportation,

plaintiffs Kommer, Linder, Holmes, Meinders, Sisk, and

Cochran, were replacements for men who had actually

replaced the Bradley plaintiffs in 1969 and were sepa-

rated on this basis. Plaintiffs Atkins, Jenkins, Harper,

and Mathis were also separated [238] from the Depart-

ment of Transportation but had neither replaced a Bradley

plaintiff nor succeeded a Brac'ey plaintiff replacement.

In the Department of Mental Health, plaintiff Claris

Barger was selected for separation on the basis of having

the most recent date of hire in the unit.

II. Due Process

[1] Plaintiffs have presented a number of theories

bottomed on the due process clause. They argue that

defendants violated the due process clause by either,

acting arbitrarily and unreasonably in dismissing’ plain-

tiffs; by implementing the Bradley order to dismiss

plaintiffs without plaintiffs being a party to the Bradley

case; by not giving plaintiffs a pre-dismissal administra-

tive hearing; by denying plaintiffs the protections of the

discharge procedures of the Illinois Personnel Code; by

failing to give plaintiffs reasonable notice of their dis-

missal; or by failing to give plaintiffs a plenary hearing,

assertedly required under the unique circumstances of

their claims. Be that as it may, the heart of the entire

litigation is the Bradley case and its implementation.

But for the Bradley case none of the plaintiffs here

would have been laid off and this case would not have

arisen. No clarification or modification of the Bradley

order was sought. Nor was any appeal taken. In fact, the

‘Plaintiffs have argued throughout, that the layoff

was hut a subterfuge for discharge and that therefore,

they were entitled to the discharge procedures under the

[llinois Personnel Code. Because of the holding here,

I believe it unnecessary to determine whether the layoff

was in fact, a subterfuge for discharge.

layoff progressed in an uncommonly swift manner. As

defendant Shelton said in his memorandum to file, “[a]

damned hectic manner in which to do business.”

The syllogism used by defendants to conclude that the

layoff here was necessary, seems to be that since;

1. Judge Verticchio ordered Bradley people put back

to work; and since

2. Employees in those units and classifications had

earlier been laid off for fiscal reasons;

3. Therefore, an equivalent number of current em-

ployees must be laid off; further,

4. Since the current employees all have the same cer-

tification date, the most equitable manner to choose

between incumbents with the same seniority is to

trace, and layoff those who actually viced or re-

placed the Bradley plaintiffs.

The fact that defendants took some actions required

by the Court’s order in Bradley is no defense to any action

taken against plaintiffs here. The plaintiffs were not

party to the Bradley order and not bound in any way

by it. Any indication that Judge Verticchio made as to

the proper status of the plaintiffs here could have no

effect since they were not parties.

The Verticchio order required only the Bradley plain-

tiffs be reinstated or discharged in accord with the per-

sonnel rules, nothing more. The responsibility for any

actions beyond reinstatement or discharge of the Bradley

plaintiffs rests with those who took them. The fact that

certain consequences flowed from the Bradley order pro-

vides no defense. In fact, that causal link, provides sub-

stantial support for plaintiffs’ due process claims.

[2] Plaintiffs assert that their rights to due process

of law were violated either by not being made party to

the Bradley decision or alternatively, by implementing

the Bradley decision as they did without plaintiffs being

party to Bradley. Defendants respond with a number of

Illinois cases cited for the proposition that in a mandamus

— 30a —

.action for reinstatement, as the Bradley case was, the

incumbent employee need not be joined unless, the manda-

mus would necessarily adjudicate the employment rights

of the incumbent. See, Cordes v. Isaacs, 27 Tll.2d 383, 189

N.E.2d 236 (1963) and People ex rel. Coryell v. Barrett,

320 Ill.App. 593, 51 N.E.2d 795 (1st Dist. 1943).

[239] This latter case couples neatly with another

argument made by defendants, but I believe the argu-

ment proves too much. The Coryell Court held that

where the plaintiff was a civil service employee and

the incumbent was not, the incumbent was not a neces-

sary party required to be joined since the incumbent

had no legal entitlement to the position and served only

at the pleasure of her employer. Defendants have argued

that since the Bradley plaintiffs were found in the Bradley

decision to have been improperly discharged, they were

de jure employees while their replacements were de facto

employees. As de facto employees, defendants argue,

plaintiffs could have been terminated at will and thus

had an insufficient property right’ in their positions to

invoke the protections of either the due process or equal

protection clause.

It is apparent that notions that the plaintiffs here

were improperly hired were utilized to select the majority

of the plaintiffs for layoff. They were selected on the

basis that they had viced or replaced Bradley plaintiffs.

I agree that the plaintiffs here were not necessary

parties under [llinois law to the Bradley court. However,

*This property right argument has been expanded to

assert that plaintiffs here were also not certified em-

ployees within Jurisdiction B of the Personnel Code and

thus had but a mere expectancy in retaining their em-

ployment insufficient to trigger the protections of either

the due proeess or equal protection clauses. Again, this

argument only points up the necessity that plaintiffs be

made party in the Bradley case. Suffice to say, defen-

dants claim that plaintiffs were treated as certified em-

ployees throughout the personnel transactions here at

issue and will be so treated here,

— 3la —

the facts undisclosed to the Bradley court, the fact. that

an equivalent number of current employees would be

laid off and that the majority would be chosen on the

basis that they had viced or replaced Bradley plaintiffs,

made the plaintiffs necessary parties both under Illinois

law and the due process clause. The rights of all the

plaintiffs here were in fact, necessarily affected by deci-

sions and policies unknown to the Bradley court.

The problem of reinstatement of employees and _ its

effect on the employees at work prior to the reinstate-

ment is reocecuring, but one to which the courts have

spoken somewhat infrequently. In racial discrimination

class actions, where the relief sought would alter the

seniority of other union members, the union or the affected

members have heen held as necessary parties. English

v. Seaboard Coast Line Railroad, 465 F.2d 43 (5th Cir.

1972); Waters v. Wisconsin Steel Works of International

Harvester Co., 301 F.Supp. 663 (N.D.11.1969). In other

cases, notice has been required to be given to affected

employees so as to facilitate intervention. See, e.g.,

Meadows v. Ford Motor Co., 510 F.2d 939, 949 (6th Cir.

1975).

Since there was a direct causal relationship between

the Bradley order and the layoff of all the plaintiffs here,

I believe these plaintiffs had a sufficient stake in the

outcome of the Bradley litigation to be made parties.

Their interests could be adequately protected in no other

proceeding. Had Judge Vertiechio known of the possible

results to the plaintiffs here, known of the results which

in fact obtained, he could have ordered the plaintiffs

joined, given notice and allowed plaintiffs to intervene

or perhaps fashioned other protections for plaintiffs’

interests. Such protections could not be formulated, how-

ever, because the defendants’ actions occurred in response

to the Bradley order.

Under the unique circumstances of this case, I believe

that plaintiffs’ rights to due process of law were violated.

The defendants’ response to the Bradley order, and the

— 32a —

manner in which Bradley was implemented established

the plaintiffs here as necessary parties to the Bradley

litigation. They were not made party and thus were

unable to protect the interest they had in their employ-

ment. They were denied due process of law.

This conclusion alone justifies the imposition of in-

junctive relief. But because of the claims for money

damages against individual defendants, I believe I must

also reach the first amendment issues.

[240] III. First Amendment

Plaintiffs present two issues asserting violations of

plaintiffs’ rights under the first amendment. First, plain-

tiffs assert that their separation from State service was

in furtherance of a patronage program, thus violating

their rights under the first amendment under the rationale

stated in the cases of Elrod et al. v. Burns et al., 427

US. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Illinois

State Employees Union Council 34 v. Lewis, 473 F.2d 561

(7th Cir. 1972), cert. denied 410 U.S. 928, 93 S.Ct. 1364,

35 L.Ed.2d 590 (1973). Secondly, plaintiffs assert that

defendants denied them re-employment opportunities in

furtherance of a patronage program and thus violated

plaintiffs’ first amendment rights.

[3] Concerning the burden of proof on these issues,

Justice Rehnquist, writing for a unanimous Court in

Mt. Healthy City School District Bd. of Ed. v. Doyle, 429

U.S. 274 at 287, 97 S.Ct. 568 at 576, 50 L.Ed.2d 471 (1977),

said:

Initially, in this case, the burden was properly

placed upon respondent to show that his conduct

was constitutionally protected, and this conduct was

a ‘‘substantial factor’’—or, to put it in other words,

that it was a “motivating factor” [footnote omitted]

in the Board’s decision not to rehire him. Respondent

having carried that burden, however, the District

Court should have gone on to determine whether the

Board had shown by a preponderance of the evidence

— 33a —

that it would have reached the same decision as to

respondent’s reemployment even in the absence of

the protected conduct.

Thus, plaintiffs have the burden of proving that their

status as Republicans was a substantial or motivating

factor in their separation from State service. Thereafter,

the burden shifts to defendants to show by a prepon-

derance of the evidence, that the separation would have

occurred in absence of plaintiffs’ status.

[4] Plaintiffs seek to discharge their burden through

a case built almost entirely upon cirewnstantial evidence

and inference. Plaintiffs have not found the “smoking

gun” which would establish beyond all question that their

status as Republicans was a motivating factor in their

separation. Rather, plaintiffs have sought to convince this

Court through a totality of the cireumstances that their

status was a substantial or motivating factor in their

separation. They have succeeded,

To begin, it must be remembered that the actions of

defendants which plaintiffs argue as raising the infer-

ence that plaintiffs’ first amendment rights were violated

must be viewed against the historical background of the

positions. This historical background, alone, raises an

inference that the actions taken by defendants here were

taken for political reasons. New administrations, both

Republican and Democratic, sought to remove holdover

patronage workers regardless of protection given their

positions by the prior administration, and place their

own patronage workers in those jobs. This hisory, when

coupled with the aborted attempt of the defendant Nolan

Jones to remove the protections of Jurisdiction B from

these particular positions, predisposes one to the idea

that the actions taken by defendants here are but one

more attempt in a long series of such attempts, to replace

holdover patronage employees with new patronage people.

Plaintiffs here were Republican patronage workers ap-

pointed under the Ogilvie administration. They were

separated from State service under the administration of

— 34a —

Daniel Walker, a Democrat. Plaintiffs argue that defen-

dants utilized the Bradley order to partially accomplish

the ends that the Democratic administration sought to

achieve by the attempt to remove Jurisdiction B from the

positions entirely. That is, the Bradley Order required

Democratic patronage workers placed on the State pay-

roll and presented the Democratic administration with

the opportunity to terminate a like number of Republican

patronage workers. I believe it would be fair to adopt

this argument on the basis of the inference that can

be drawn of the history of the positions alone. However,

plaintiffs have bolstered this inference with a number

of actions on [241] the part of defendants which I believe,

establish by a preponderance of the evidence, that plain-

tiffs’ political affiliation was a substantial or motivating

factor in the personnel action taken against them.

Chronologically, the defendants’ response to the Bradley

case itself, supports the inference that plaintiffs’ status

was a substantial factor in their separation from State

service. Governor Walker’s administration was firmly in

control at the time that Judge Verticchio found in favor

of the former Democratic patronage workers and ordered

their reinstatement. No appeal from this order was taken,

no clarification was sought, nor was any modification of

the order attempted* in spite of the fact that five of the

Bradley plaintiffs were thought physically incapable of

performing their duties and it was recommended that

the Attorney General’s office be contacted to file a motion

seeking relief from the Bradley order concerning these

individuals. These findings and recommendations are con-

tained in a memorandum from one R. L. McCracken to

the defendant Robert Rhoads. There was testimony to

*To this point in the opinion all the arguments for

counsel have been equally applicable to the claims of each

individual plaintiff. However, many of the circumstances

from which plaintiffs seek to draw inferences are appli-

cable only to happenings in DOT. Plaintiff Claris Barger

was at the time of layoff, employed in DMH. His claims

wil] be dealt with separately.

— 35a —

the effect that Mr. Rhoads gave the memorandum to the

defendant Brian Hannigan and that Hannigan took no

action.

Mr. Hannagan’s role in plaintiffs’ case is important

in several other ways. He was employed at the time as

defendant Bond’s administrative assistant. His function

was to serve as Secretary Bond’s representative in all

matters concerning personnel management in DOT. He

was particularly charged with the duty of assuring the

Department’s compliance with the Bradley order. Prior

to his joining State government in January of 1973,

Hannigan had been campaign coordinator in the 20th

Congressional District for the campaign of Dan Walker

for Governor. There was testimony to the effect that it

was general knowledge that at the time in question, Mr.

Hannigan was in charge of patronage at DOT.

Given Mr. Hannigan’s political background, it must

be remembered that Hannigan was a member of the

group who initially determined that the Bradley plain-

tiffs would have to be reinstated and a like number of

current employees laid off. Further, there was testimony

to the effect that when defendant Rhodas attempted to

get approval for the Wren plaintiffs to apply for volun-

tary reductions as authorized under the personnel code,

ne told Rhoads that these requests could not be

onored.

Apparently voluntary reductions could only be taken

to the positions of summer junior laborer. Those posi-

tions had a patronage history and remained patronage

through the summers of 1973 and 1974. Apparently the

process for obtaining these positions began with Hanni-

gan informing Mr. David Cleverdon, the patronage direc-

tor in the Governor’s office, how many jobs were available

and Cleverdon’s office would in return, give Hannigan

the names and addresses of people to whom offers of

employment could be made. Those names would then be

forwarded from Hannigan’s office through the proper

chain of command in DOT and the employment offer

was made at the district level.

— 36a —

Hannigan’s political background and the decisions which

he made or which he took part, provide some support for

the inference that plaintiffs’ status as Republicans was

a substantial factor in their separation from State service.

Another major support for plaintiffs’ inference is the

method used in selecting the plaintiffs here for layoff.

While this method of determining who was to be laid

off apparently originated with defendant [242] Rhoads,

there is evidence to the effect that it was done with the

approval of a number of the other defendants. Prior

layoffs in these same sections of the Department of

Transportation had utilized seniority as the sole criteria

in determining who was to be laid off, but in this instance

the Democratic administration determined that this special

method of selection was warranted. This methodology

ean only be construed as an attempt to return to an

earlier time when A, B and C were the Republican

maintenance workers and X, Y and Z were the Democratic

maintenance workers and each change of administration

brought changes in the laborers who worked on the

State’s highways.

Before terminating the discussion of the manner in

which the layoff was accomplished, it is instructive to

examine plaintiffs’ exhibit 91. That exhibit is a memoran-

dum from defendant Don Shelton, Administrative Manager

for District 9, DOT, to his own file, dated June 14, 1973.

The memorandum purports to record the final instructions

received from defendant Rhoads concerning the layoff.

It states that Rhoads received his instructions from

“downtown” on the night before. It further records that

the letter mailed to the returning Bradley plaintiffs

contained no provisions for the individual to decline the

offer of reinstatement. From this last fact, it can be

inferred that defendants intended to lay off a number of

‘The method chosen was to trace the persons who had

actually replaced Bradley plaintiffs on the job. This

method has been discussed in Part I, supra, and provides

substantial support for the holding in Part II, supra, and

will not be discussed in detail here.

>

— 37a —

current employees equal to the number of Bradley plain-

tiffs without respect to whether those plaintiffs all re-

turned to work or not.

While it is true that the number of employees laid

off was equivalent to the number of Bradley plaintiffs

returning to work and, in fact, one employee scheduled

for layoff was not laid off when it was determined that 2

Bradley plaintiff, Frank Davis, was physically unable

to return to work, a Wren plaintiff was laid off for each

Bradley plaintiff who in fact reported. This was in spite

of the fact that at the time they reported there was some

doubt as to whether five of the Bradley plaintiffs were

physically capable of performing the work, that four of

the Bradley plaintiffs had not successfully completed the

Department’s required eye examination, that three were

65 years of age or older, that two took immediate leaves

of absence and finally, that one resigned within two weeks

of plaintiffs’ layoff. In this regard, it should be noted

that since the Bradley plaintiffs reported for work on

June 20, 1973, and the Wren plaintiffs were not laid

off until June 30, 1973, there is no doubt that defendants

had notice, at least of the physical infirmities of the

Bradley plaintiffs, prior to layoff.

Along this same line, plaintiffs have made a separate

issue out of whether they were denied re-employment

opportunities as a result of a partonage program in

violation of their rights under the first amendment. None

of the plaintiffs here, with the exception of Ira Harper,

has been reinstated even though all plaintiffs purportedly

had re-employment rights for a two-year period following

their layoff. Bradley plaintiffs, Robertson and Rowe re-

signed their positions on July 13, 1973, and September

28, 1973, respectively. Howard Casey and Paul Potter,

both plaintiffs here, made timely demands for re-employ-

ment. These demands were refused. Further, Bradley

plaintiff John Davis died on November 26, 1973. Wren

plaintiff Arthur Meinders, who was terminated to make

space for Davis, made a similar demand for re-employ-

ment, but was also refused.

pa ee

Defendants answered these particular demands for re-

employment with letters stating that due to fiscal re-

straints those positions would not be filled. It is not the

business of this Court to determine how the Illinois

Department of Transportation distributes its allocated

funds. However, it must be noted that plaintiffs proved

that during the period subsequent to plaintiffs’ layoff,

funding was available for at least five so-called “ghost”

employees in the district where plaintiffs were laid off.

These employees were persons who, although they were

on the payroll, were very rarely seen and whose function

was unknown to those working in the district. The con-

clusion that they were political patronage workers is

inescapable.

[243] These facts and circumstances when taken in toto

establish by preponderance of the evidence, that plain-

tiffs’ political associations were a substantial or moti-

vating factor in their separation from the State service.

No one fact or circumstance when taken alone is sufficient

to discharge plaintiffs’ burden, but when taken together,

and when all reasonable inferences are drawn therefrom,

I find that plaintiffs have discharged their burden.

Under the Mt. Healthy decision then, the burden is

shifted to defendants to establish that plaintiffs would

have been separated from State service in any event

This burden has not been met.

Although defendants argued well, the bulk of their

argument has been directed at obtaining the opposite

inference from the facts and circumstances plaintiffs

have argued. Their strongest argument is the established

fact that all the workers in the affected units were Re-

publicans and that no Democratic patronage workers,

other than the Bradley plaintiffs, have to this date been

hired in those units.°

‘There were no ‘‘ghost employees’’ carried on the

payrolls of any of plaintiffs organization units. How-

ever, there apparently were such employees on the pay-

roll of the District organization.

In my opinion this falls short of discharging their

burden in at least two ways. First, defendants’ evidence

does not establish to my satisfaction, that fiscal restraints

required the layoff of a number of current employees

equivalent to the number of Bradley plaintiffs. Secondly,

it appears to me to be undisputed that except for the

activities of a number of these plaintiffs as the political

patronage workers who had replaced the Bradley plain-

tiffs they would not have been chosen or at least might

not have been chosen, for layoff.

Under these circumstances I believe that the plaintiffs

employed in DOT, must prevail on the first amendment

issue and so hold. Since the question of damages has

been reserved for later hearing, as to the DOT plaintiffs,

only issues as to the liability of individual defendants

remain. ‘hese issues will be discussed in Part IV of the

opinion. But before reaching those issues, the position of

plaintiff Barger must be addressed.

[5] Plaintiff Claris Barger was employed as a main-

tenance equipment operator at the Anna State Hospital

in the Department of Mental Health. He was the only

plaintiff here laid off in DMH as a result of the Bradley

order. In contrast to the DOT plaintiffs, Barger was

laid off because although his seniority date was the

same as four other workers in his unit, his total time

of State service was less.

Judge Verticchio ordered three Bradley plaintiffs re-

turned to DMH. One was unable to return because of

ill health. Barger and Royal EF. Kirkpatrick, not a plain-

tiff here, were laid off. Their layoffs were effective July

13, 1973. Dr. LeRoy P. Levitt, in his letter to defendant

Nolan Jones, Director of the Department of Personnel,

stated :

These layoffs are due to surplus employees in the

above classification which was created by court or-

der in case no. 275969 [sic] filed in the Cireuit Court

of Sangamon County, which returned three former

maintenance equipment operators to work on June

— “en

21, 1973. One of these employees has since resigned

which is the reason two maintenance equipment oper-

ators are being laid off rather than three.

As to the first amendment claims asserted, plaintiff

Barger can only show that he was a former Republican

patronage worker, that he was laid off during a Democra-

tic administration and that he was laid off in order to

make room for a former Democratic patronage worker

ordered reinstated by the Bradley decision. No other

facts or circumstances concerning plaintiff Barger have

asserted from which it can be inferred that Barger’s

layoff was due to his status as a Republican. Under

these circumstances, I do not believe plaintiff Barger

has discharged his burden. He has not established that

the exercise of a right protected under the first amend-

ment was a [244] substantial or motivating cause for

his separation.

After an examination of the other issues presented

on behalf of plaintiff Barger, excepting only those dis-

cussed in Part II, swpra, I believe he has failed to estab-

lish that any of his rights under the Constitution were

violated in his separation from State service. His major

argument is that under the circumstances here alleged

he was entitled to a pretermination hearing prior to his

separation from State service. This, of course, is true

if Barger was in fact discharged rather than laid off.

There is no question that were plaintiffs discharged

rather than laid off they would be entitled to greater

procedural protections. As Justice Underwood, writing

for the Illinois Supreme Court, said in Powell v. Jones:

[t]he apparent difference between procedures pro-

vided for certified employees in discharges and lay-

offs is the right to a plenary hearing and to counsel,

witnesses, confrontation and cross-examination prior

to his discharge for cause. 56 I11.2d 70, 81, 305 N.E.2d

166, 171 (1973).

Be that as it may, as to the evidence presented on be-

half of plaintiff Barger, I cannot say that the layoff was

—4la —

a subterfuge for discharge. Under the analysis in Part

II, supra I believe Barger has established that his rights

to due process were violated. However, judgment must

be for defendant on the remainder of plaintiff Barger’s

claims.

IV. Individual Liability

Plaintiffs here seek a mandatory injunction requiring

reinstatement, compensatory and punitive damages, as

well as attorneys’ fees under 42 U.S.C. § 1988. The claims

for money damages and attorneys’ fees are made against

the defendants in their individual capacities. Defendants

in turn, respond that they are immune from such dam-

ages based on an application of the doctrine of qualified

good-faith immunity.

For reasons which will appear more fully below, the

injunction shall be granted and punitive damages denied,

compensatory damages, and attorneys’ fees allowed, but

the questions of immunity for some defendants will be

reserved.

Originally, Nolan B. Jones, Langhorne Bond, and

LeRoy Levitt were named both individually and in their

official capacities as Director of the Department of Per-

sonnel, Secretary of Department of Transportation, and

Director of the Department of Mental Health respectively.

Subsequently, the present holders of those offices, Wil-

liam Boys, Director of the Department of Personnel,

Robert DeVito, Director of the Department of Mental

Health, and John D. Kramer, Secretary of the Depart-

ment of Transportation, were substituted for Jones, Bond

and Levitt in their official capacities. These substituted

defendants returned plaintiffs to work under a prelim-

inary order of this Court. That preliminary order is

justified under the findings of Part IIT and Part ITI of

this opinion, and is hereby made permanent.

[6] In response to plaintiffs’ claims for compensatory

and punitive damages as well as attorneys’ fees, defen-

dants have raised the doctrine of qualified immunity

based on good-faith. It has been established since T'en-

cael ty

ney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed.

1019 (1951), that under certain circumstances immunity

protects governmental officials from liability for dam-

ages sought under 42 U.S.C. § 1983, resulting from

actions taken in their official capacities. For some govern-

mental officials, for example legislators and judges, that

immunity is absolute. See, Tenney, supra, at 376, 71 S.Ct.

783 and Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099,

55 L.Ed.2d 331 (1978). For others, only a qualified im-

munity based on good-faith is available. See, Scheuer

v. a 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90

(1974).

It is the existence of reasonable grounds for the

belief formed at the time and in light of all the cir-

cumstances, coupled with good-faith belief, that affords

a basis for qualified immunity of executive officers

for acts performed in the course of their official

conduct. Scheuer, swpra at 247-248, 94 S.Ct. at 1692.

[245] [7] In order for this immunity to protect the

governmental official, the official must prove that he did

not know nor reasonably should have known, that the

actions he took would violate the constitutional rights of

the plaintiff and that he did not take the actions with any

malicious intent to cause a deprivation of constitutional

rights or other injury to plaintiff. Wood v. Strickland,

420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975).

See also, Foster v. Zeeko, 540 F.2d 1310 (7th Cir. 1976);

Hostrop v. Bd. of Jr. College Dist. No. 515, 523 F.2d

569 (7th Cir. 1975) and Mims v. Bd. of Education of the

City of Chicago, 523 F.2d 711 (7th Cir. 1975).

{8] Thus, the Wood test contains both objective and

subjective elements. Defendants must establish the lack

of each of these elements in order to be entitled to im-

munity. Further, I believe that if it can be shown that

any defendant acted with malicious intent to cause de-

privation of constitutional rights or other injury to any

plaintiff, the subjective portion of the Wood test, that

plaintiff would be entitled to punitive damages.

— 43a —

However, after an examination of the briefs concern-

ing the role of each individual defendant and a review

of the testimony of those defendants either taken in open

Court or through depositions I believe that defendants

have successfully established the lack of any malicious

intent. That finding precludes the award of punitive

damages against any defendant.

There remains, however, an examination of defendants’

actions under the objective portion of the Wood test.

The question is whether each defendant knew or reason-

ably should have known, that the actions he took would

violate the constitutional rights of any plaintiff.

Plaintiffs’ rights have been found to have been violated

in two respects. In Part II, I determined that plaintiffs’

rights to due process of law were violated through the

handling of the Bradley decision and its implementation.

In Part III of his opinion I have determined that plain-

tiffs’ first amendment rights were violated since plain-

tiffs’ status as Republicans was a substantial or mo-

tivating factor in the personnel actions taken.

The part played by any one defendant in the violation

of plaintiffs’ rights is difficult to ascertain. Counsel] for

defendant has argued that plaintiffs’ claims read like a

conspiracy case even though no conspiracy is charged.

To a large extent this is true. Each defendant played

a role, although at times a fairly minimal role, in the

violation of plaintiffs’ rights. The burden on defendants

at this point is to show that they did not know nor rea-

sonably should have known that their actions violated

plaintiffs’ rights. Defendants thus have the burden of

proving a negative, the lack of knowledge. Because of

the small part played in the violation of plaintiffs’

rights by a number of the defendants and because plain-

tiffs’ assertion of political motivation has been proven

by inference rather than direct evidence, the burden of

each individual defendant is almost impossible to dis-

charge,

aa;

In this area, the defendants each have the burden of

proving that as an individual, they did not know nor

reasonably should have known, either that politically

motivated personnel transactions violated plaintiffs’ first

amendment rights or that the personnel transaction at

issue was politically motivated.

No defendant here can be heard to say that he did

not know or should not have known that party affiliation

was an impermissible basis on which to found a per-

sonnel transaction. While neither the Mt. Healthy ra-

tionale nor the decision in Elrod v. Burns, supra was

available to defendants at the time their actions were

taken, the roots of the Elrod decision had been clearly

established in Illinois State Employees Union v. Lewis,

473 F.2d 561 (7th Cir. 1972), cert. denied 410 U.S. 928,

93 S.Ct. 1364, 35 L.Ed.2d 590 (1973). While patronage

dismissals had been the rule rather than the exception,

the Lewis case held such transactions impermissible The

Lewis decision was not only delivered in the Seventh

Circuit, but involved patronage practices in the [Illinois

Secretary of State’s Office.

[246] Under that circumstance, and with that authority

available to them, I do not believe that any defendant

ean establish that they should not have known that party

affiliation was an impermissible basis on which to found

a personnel transaction. Thus, I believe it fair to say

that each of the defendants knew or should have known

that the personnel transactions asserted here, if politically

motivated, were constitutionally impermissible.

With that predicate, the question remains whether

each defendant knew or should have known that the acts

he took, aided a politically motivated personnel transac-

tion. Since a number of the individual defendants here

are career civil service workers who have served under

a number of administrations, both Republican and Dem-

ocratic, it is unlikely that any of those defendants were

personally motivated by political considerations. How-

ever, I believe if they knew or should have known that

the actions they took were in aid of partisan political

pe

practices, they may be liable for the political motiva-

tions of others.

[9] Two of the defendants, defendants Hannigan and

Rhoads, had to know of the political motivations. Those

two were present at the initial meeting where it was

determined that the Bradley plaintiffs had to be re-

turned, that an equivalent number of then current em-

ployees had to be laid off and that the method to be

utilized to determine who was to be laid off was to find

the employee who had actually viced or replaced the

returning Bradley plaintiff. Those actions provided in-

ferences which led me to conclude in Part III of this

opinion that the personnel transactions involved were

in fact politically motivated. Defendants Rhoads and

Hannigan are responsible for those decisions. They have

been unable to establish any basis for qualified immuni-

ty. They must be held liable for compensatory damages

and attorneys’ fees.

[10] Three other defendants, Ronan, Knox and Jones,

I believe have successfully established either that they

individually took no action which aided in the violation

of plaintiffs’ rights or that they had no reason to know

of the political motivation behind the transactions in-

volved. They are entitled to qualified immunity and are

not liable for any compensatory damages.

rT

As to the remaining defendants, there are facts which

would lead one to infer that they knew or should have

known of the politically motivated nature of the person-

nel actions each individual defendant was ordered to

take. However, at this point I expressly decline to find

their individual liability for the reason that it appears

unnecessary at this point.

During the pendency of this litigation, the State of

Illinois enacted an indemnity provision for state em-

ployees. Public Act 80-1078 (December 3, 1977). Ch.

127, Ill.Rev.Stat. § 1302. The statute is intended to

provide indemnity for any state employee who is named

in a civil proceeding alleging the deprivation of a civil

a

or constitutional right which arose out of any act or

omission occurring within the scope of the employee’s

State employment. The Act provides in part:

(c) In any such proceeding unless the Court or jury

finds that the conduct or inaction which gave rise

to the claim or cause of action was intentional, will-

ful or wanton misconduct and was not intended to

serve or benefit interests of the State, the State shall

indemnify the State employee for any damages

awarded and court costs and attorneys’ fees assessed

as part of any final and unreversed judgment.

I believe that defendants Rhoads and Hannigan are

entitled to indemnity under this provision. I decline to

so hold only because the matter is not properly before

me.

If that is the case, there appears no point in entering

the thorny thicket of individual immunity for the re-

maining defendants. The defendants are jointly liable

for compensatory damages and attorneys fees. Since

two defendants have been found so liable and since I

believe those two defendants are entitled to be indem-

nified by the State of Illinois, it appears of little moment

[247] whether the remaining defendants are or are not

entitled to immunity. However, should it appear at some

later date that defendants Rhoads and Hannigan are not

entitled to indemnity, I will not hesitate to enter the

immunity thicket and ¢ termine the individual culpability

of the remaining four defendants.

As to the matter of attorneys’ fees sought under 42

U.S.C. § 1988 I believe they should be awarded in this

action and so hold. They appear to be covered by the

above quoted indemnity statute. However, if indemnity

is not forthcoming, I note that under the recent United

States Supreme Court case of Hutto et al. v. Finney, et al.,

sdeitlenp U.S. .....5 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978),

individual State departments, ie., the Department of

Personnel, the Department of Transportation, and the

Department of Mental Health and thus, the State of

— 47a —

Illinois, can be held liable for attorneys’ fees under 42

U.S.C. § 1988 even though those State departments and

the State itself are not party to the action. Since that

statute was passed in order to enforce the fourteenth

amendment, the State’s eleventh amendment immunity

from retroactive relief as found in Edelman v. Jordan,

415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) is no

bar. See, Fitepatrick v. Bitzer, 427 U.S. 445, 96 S.Ct.

2666, 49 L.Ed.2d 614 (1976) and Hutto v. Finney, supra,

and Bond vy. Stanton, 555 F.2d 172 (7th Cir. 1977).

In light of the fact that the defendants throughout have

been represented by a Special Assistant Attorney General

of the State Illinois and with a view to the peculiar facts

and circumstances of this case, I believe it would be ap-

propriate that the attorneys’ fee award be assessed

against the present state officials in their official capa-

cities and thus against the State departments and not

the individual defendants. But, since the indemnity stat-

ute appears to reach the same result at this time, attor-

neys’ fees in amounts to be determined later will be

assessed against defendants Rhoads and Hannigan. Should

indemnity not be forthcoming, this matter will be recon-

sidered on appropriate motion in light of the Hutto case.

In summary then, with the exception of plaintiff Bar-

ger, I find that the first amendment rights of all plain-

tiffs were violated. I further find that the rights of all

defendants including plaintiff Barger were violated un-

der the due process clause.

All plaintiffs were entitled to a mandatory permanent

injunction requiring their return to work.

All plaintiffs, with the exception of plaintiff Barger,

are entitled to compensatory damages in amounts to be

determined later. Defendants Rhoads and Hannigan have

no immunity and are jointly liable for these compensatory

damages and attorneys’ fees under 42 U.S.C. § 1988.

The individual liability of defendants Shelton, Miley

and Bond are reserved.

a “an

Defendants Knox and Jones are not liable for any

compensatory damages.

No plaintiffs are entitled to punitive damages.

Counsel for plaintiff is directed to prepare an order to

this effect. Cause shall be set for proceedings in accord

with this opinion at a later date.

— 49a —

APPENDIX C

IN THE

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

SOUTHERN DIVISION

CECIL WREN, et al.,

Plaintiffs,

v.

NOLAN B. JONES, et al.,

No, S-CIV-73-204

Defendants.

INTERIM JUDGMENT ORDER

Filed Oct. 18, 1978

This cause having come on for trial before the Court

without a jury, evidence taken and received, Proposed

Findings of Fact and Conclusions of Law submitted by

the parties and the issues fully briefed, the Court being

advised in the premises and having issued on August

4, 1978, its Memorandum Order in which were made

findings and conclusions of law pursuant to F. R. Civ. P.

52(a) ;

It is therefore entered, ordered, adjudged and decreed

as follows:

1. That within 30 days of the date of this Order,

defendants, John D. Kramer, in his official capacity as

Secretary of Transportation, State of Illinois and Wil-

liam R. Boys, in his official capacity as Director of Per-

sonnel, State of Illinois, offer to reinstate, in certified

status, as of the date of his termination, each of the

following named plaintiffs in the same or equivalent

position of employment held by him at the time of his

indie ia

separation from employment, (1) to and including March

31, 1977:

Charles Leroy Cochran Luster Etheridge

William Roosevelt Brooks Arthur William Meinders

Charles Anthony Wenzel Arnold John Kommer

Rollie Linder Theodore Jewell Patterson

Paul Potter Carl Dixon

Jewell Elbert Sisk Robert Gale Lovellette

Lowell Ray Holmes James Paul Caldwell

Forrest Ray Simmons Lacie Dean Betts

Richard Dwight Peeler William Allen Peeler

Edward F. Atkins

(2) to and including June 5, 1975:

Ira Walter Harper

2. That within 30 days of the date of this Order,

defendants, Robert A. deVito, in his official capacity as

Director of Mental Health, State of Illinois and William

R. Boys, in his official capacity as Director of Personnel,

State of Illinois, offer to reinstate, in certified status, as

of the date of his termination, plaintiff, Claris D. Barger,

in the same or equivalent position of employment held

by him at the time of his separation from employment

to and including March 31, 1977.

3. Defendants, J. Brian Hannigan and Robert D.

Rhoads, are held and found to be personally liable, jointly

and severally, for compensatory damages due to the

plaintiffs named in paragraph 1 hereof and, in addition,

to plaintiffs Verla Casey, Leoda Wren, Velma Jenkins

and Lillie Mathis in such amounts as will be determined

after further hearing and findings of this Court, for

which purpose this cause is continued.

4. Judgment is entered on behalf of defendant, Alfred

Ronan, in his individual capacity, in which capacity this

cause is dismissed.

— la —

5. Judgment has been entered on behalf of defendants,

Nolan B. Jones and David E. Knox in their individual

capacities in which capacities this cause is dismissed as

to said defendants.

6. The Court reserves for further ruling: (a) the

liability of individual defendants, Langhorne M. Bond,

Donald Shelton and Richard D. Miley, for the payment

of compensatory damages, attorneys fees and costs and

(b) the liability of defendants, John D. Kramer, William

R. Boys and Robert A. deVito in their official capacities

for the payment of attorney fees and costs.

7. Defendants, J. Brian Hannigan and Robert D.

Rhoads, are liable, jointly and severally, for the pay-

ment of plaintiffs’ attorneys fees and costs in such

amounts as to be determined after further hearing for

which purpose this cause is continued.

This cause is continued for further hearing in accord-

ance with the terms of this Order and the Memorandum

Order of August 4, 1978.

Enter: 10-18-78.

/s/ J. Waldo Ackerman

United States District Judge

ee

APPENDIX D

IN THE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF ILLINOIS

SOUTHERN DIVISION

CECIL WREN, et al.,

Plaintiffs,

v.

NOLAN B. JONES, et al.,

Defendants.

No. S-CIV-73-204

AMENDED INTERIM JUDGMENT ORDER

Filed Dee, 21, 1978

The Interim Judgment Order entered by this Court on

October 18, 1978 is hereby amended in paragraph 1 to

include the name of Plaintiff James Edward Johnson in

the list of named Plaintiffs who are to receive, within 30

days, an offer of reinstatement in certified status as

of the date of termination in the same or equivalent

position of employment held at the time of separation

from employment (1) to and including March 31, 1977,

as required of the Defendants John D. Kramer, in his

official capacity as Secretary of Transportation, State of

Illinois, and William R. Boys, in his official capacity as

Director of Personnel, State of Illinois.

Enter: /s/ J. Waldo Ackerman

Dated: 12-20-78.

enti ain

APPENDIX E

IN THE

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS — SPRINGFIELD

DIVISION

CECIL WREN, et al.,

Plaintiffs,

v.

NOLAN B. JONES, et al.,

Defendants.

No. 8-Civ-73-204

ORDER

Filed Sept. 17, 1979

This Court, in Wren v. Jones, 457 F.Supp. 234 (8.D.

Tl. 1978), previously has found two defendants, Han-

nigan and Rhoads, liable to twenty-five plaintiffs who

were terminated from their employment in violation of

their rights under the first amendment and due process

clause. (A twenty-sixth plaintiff, plaintiff Barger, was

found not entitled to compensatory damages but did ob-

tain a permanent injunction requiring his return to work.)

Assessment of damages and attorneys’ fees remains to

be decided in this order.

Damages

This Court has undertaken the laborious task of in-

dividually determining twenty-five separate plaintiffs’

claims to damages in this case. Each plaintiff’s particular

circumstances have been examined. In addition, the Court

has considered whether the parties made sufficient efforts

to mitigate their damages and also has considered the

one Die) xe

parties’ arguments regarding overtime pay. Plaintiffs

sought to recover back pay for overtime they might have

worked had they not been laid off. Their claims including

overtime totalled approximately $641,000. The claims for

overtime are not allowed. In addition, all overtime actual-

ly earned during the period of the layoff should serve to

offset the base salary amount along with the other items

of income and offsets received by the plaintiffs during

that time. Consequently, the Court finds the following

to be the compensation plaintiffs lost and consequently

their damages:

Atkins $21,000.00

Betts 0

Caldwell $15,000.00

Dixon $21,735.00

Etheridge $20,000.00

Kommer $5,100.00

Linder $15,000.00

Lovelette $22,050.00

Patterson $30,000.00

R. Peeler $27,000.00

Potter $22,000.00

Simmons $37,000.00

Sisk $21,800.00

Mathis $20,000.00

Jenkins $11,125.55

As to the following plaintiffs, the defendants’ attorney

does not contest their mitigation efforts. Thus, except

for the overtime issue decided above in favor of defen-

dants, the compensation lost and the damages for the

following plaintiffs as the result of stipulation are:

Brooks $19,378.00

Cochran $8,832.55

Harper $9,957.00

Johnson $16,378.00

Meinders $161.15

W. Peeler $245.94

ania ie

Wenzel $10,900.00

Wren $5,100.00

*Casey $17,765.51

Holmes $17,812.00

*This figure includes $2,000 in life insurance benefits

which would have been paid to the plaintiff had he died

while working for the State. The defendants did not

stipulate to this amount.

Attorneys’ Fees

By its very language, an award of attorneys’ fees is

within the trial court’s discretion under 42 U.S.C. § 1988.

The legislative history indicates that a prevailing plain-

tiff should recover attorneys’ fees ‘‘unless special circum-

stances would render such an award unjust.” S.Rep.No.

94-1011, 94th Cong., 2d Sess. 5 (1976) reprinted in 1976

U.S. Code Cong. & Admin. News, 5908, 5912, quoting New-

man v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402

(1968); accord Perez v. Rodriguez Bou, 575 F.2d 21, 24

(1st Cir. 1978); Morrow v. Dillard, 580 F.2d 1284, 1300

(5th Cir. 1978). This Court feels that such special cir-

cumstances exist in this case, allowing the Court to exer-

cise its discretion. Thus, one-half the attorneys’ fees will

be awarded to the plaintiffs against defendants and the

remaining one-half will be assessed pro-rata among the

plaintiffs. There were extended delays prior to the is-

suance of the reinstatement order which were the fault

of neither party. These delays artificially extended the

period over which the case pended. The Court has con-

sidered other factors relating to the award of attorneys’

fees and feels that apportioning the fees as described

above gives the most equitable result.

*If the Court of Appeals should find for the plaintiffs

only on the due process issue and not on the liability

issue, I would assess all fees against the defendants,

ig sine

Due to the lack of malicious intent on defendants’ part,

these fees shall he assessed against them solelv in their

official canacitv. See Hutto v. Finney, 437 U.S. 678, 700

(1978): Pickett v. Milam, 579 F.2d 1118, 1120 (8th Cir.

1978). The legislative history of section 1988 provides

that awards of attornevs’ fees arainst a state emnlovee

in his official capacity “like other items of cost will be

collected either directly from the official, in his official

capacity, from funds of his agency or under his control,

or from the State or local government (whether or not

the ageney or rovernment is a named party).” S. Ren.

No. 94-1011. 94th Cone., 2d Sess. 5, reprinted in 1976

U.S. Code Cong. & Admin. News, 5908, 5913 (footnotes

omitted). Thus it is contemplated that payment will be

made from officia) funds available to the defendants or

by the State itself. It should be noted that this result

would also be achieved under Illinois’ indemnity statute

for state employees. Tll.Rev.Stat. ch. 127, § 1302 (1977).

I find reasonable attorneys’ fees to he $127,700 in this

case. This conclusion is reached according to criteria set

forth in H.R.Rep. No. 94-1558 and S.Rep. No. 94-1011,

Civil Rights Attornevs’ Fees Awards Act, 42 U.S.C. §

1988. as amended; Water v. Wisconsin Steel Works of

International Harvester, 502 F.2d 1309 (7th Cir. 1974),

cert denied 425 U.S. 997 (1976); Johnson v. Georgia High-

way Express, 488 F.2d 714 (5th Cir. 1974); McPherson

v. School Dist. No. 186, 465 F.Supp. 749, 756 (S.D.TIl.

1978). This Court has examined the number of hours

required in the preparation of this case, the results ob-

tained, the experience, reputation and ability of the at-

torneys involved, and the customary fee for complex

litigation by those of comparable abilities. The plain-

tiffs’ attorney, Mr. Hanley, displayed unusual legal abil-

ity in developing and presenting a case based in large

part on voluminous state records. This work necessarily

required many hours of concentrated effort on his part.

Costs and paralegal expenses in the amount of $9,938.29

will also be allowed to plaintiffs against defendants. Mr.

Hagen, as attorney for the defendants, capably defended

— 57a —

their interests in this case. Both attorneys are to be com-

mended for their diligence and thoroughness.

In light of the finding of no malicious intent on the

part of defendants Rhoads and Hannigan, they appear

to be entitled to indemnity in the above amounts of

damages and attorneys’ fees under Ill.Rev.Stat. ch 127,

1302 (1977). That statute provides in part:

(ec) In any such proceeding unless the Court or

jury finds that the conduct or inaction which gave

rise to the claim or cause of action was intentional,

willful or wanton misconduct and was not intended

to serve or benefit interests of the State, the State

shall indemnify the State employee for any damages

awarded and Court costs and attorneys’ fees assessed

as part of any final and unreversed judgment.

Part (f) of the statute provides for indemnity whether

the individual is sued in an individual or official capacity.

Because indemnity appears to be forthcoming for these

two defendants, I am still reserving judgment as to the

other defendants. As to defendants Rhoads and Han-

nigan, there is no just reason for delay and therefore

I am directing a final judgment be entered as to them

pursuant to Federal Rule 54(b).

Enter this 17 day of September, 1979.

/s/ J. Waldo Ackerman

United States District Judge

sem cies

APPENDIX F

UNITED STATES DISTRICT COURT

FOR THE

CENTRAL DISTRICT OF ILLINOIS

CECIL WREN, et al.,

vs.

NOLAN B. JONES, individually and as Director of the

Department of Personnel of the State of Illinois, et al.

No. S-CIV-73-204

JUDGMENT

Filed Sept. 19, 1979

This action came on for trial before the Court, Honor-

able J. Waldo Ackerman, United States District Judge,

presiding, and the issues having been duly tried (heard)

and a decision having been duly rendered.

It is Ordered and Adjudged that pursuant to Order

entered September 17, 1979 and Amended Order entered

September 19, 1979, Judgment is hereby entered in favor of

each of the following plaintiffs and against defendants

Robert Rhoads and Brian Hannigan, in the amounts of:

$21,000.00 - Atkins, Edward F.

$ 35.70- Betts, Lacey Dean

$15,000.00 - Caldwell, James Paul

$21,735.00 - Dixon, Carl

$20,000.00 - Etheridge, Luster

$ 5,100.00- Kommer, Arnold John

$15,000.00 - Linder, Rollie

$22,050.00 - Lovelette, Robert Gail

$30,000.00 - Patterson, Theodore Jewell

$27,000.00 - R. Peeler, Richard Dwight

$22,000.00 - Potter, Paul

=~

$37,000.00 - Simmons, Forest Ray

$21,800.00 - Sisk, Jewell Elbert

$20,000.00 - Mathis, Lillie

$11,125.55 - Jenkins, Velma

$19,378.00 - Brooks, William Roosevelt

$ 8,832.55 - Cochran, Charles Leroy

$ 9,957.00 - Harper, Ira Walter

$16,413.08 - Johnson, James Edward

$ 161.15-Meinders, Arthur William

$ 245.94-W. Peeler, William Allan

$10,966.00 - Wenzel, Charles Anthony

$ 5,100.00 - Wren, Leoda

$17,765.51 - Casey, Verla

$15,831.86 - Holmes, Lowell Ray

Dated at Springfield, linois, this 19th day of Septem-

ber, 1979.

/s/ Robert J. Kauffman

Clerk of Court

/s/ Joan Keltner

Joan Keltner, Deputy Clerk

— 60a —

APPENDIX G

IN THE

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS—SPRINGFIELD

DIVISION

CECIL WREN, et al.,

Plaintiffs,

v.

NOLAN B. JONES, et al.,

No. S-CIV-73-204

ORDER

Filed Sept. 19, 1979

This Court entered an order on September 17, 1979, in

the case of Wren v. Jones, S-Civ-73-204, assessing dam-

ages and attorneys’ fees. This Court, pursuant to Fed-

eral Rule 60(a), hereby corrects that order in the fol-

lowing ways:

Plaintiff Betts is entitled to $35.70.

Plaintiff Johnson is entitled to $16,413.08.

Plaintiff Wenzel is entitled to $10,966.00.

Plaintiff Holmes is entitled to $15,831.86.

Enter this 19 day of September, 1979.

/s/ J. Waldo Ackerman

United States District Judge

Defendants.

— 6la —

APPENDIX H

IN THE

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

CECIL WREN, et al.,

Plaintiffs,

v.

NOLAN B. JONES, et al.,

Defendants.

No. S-CIV-73-204

ORDER

Filed Jan. 15, 1980

UPON THE MOTION of the Defendants, JOHN D.

KRAMER, in his official capacity as Secretary of the

Department of Transportation of the State of Illinois;

WILLIAM R. BOYS, in his official capacity as Director

of the Department of Personnel of the State of Illinois;

and, ROBERT A. deVITO, in his official capacity as Di-

rector of the Department of Mental Health and Develop-

mental Disabilities, by William J. Scott, Attorney Gen-

eral for the State of Illinois, and Raymond L. Terrell

and Henry C. Hagen, Special Assistant Attorneys Gen-

eral for the State of Illinois for entry of a final judg-

ment pursuant to Rule 54(b) as to these Defendants, it

is hereby:

ORDERED, ADJUDGED AND DECREED that as to

Defendants, JOHN D. KRAMER, WILLIAM R. BOYS

and ROBERT A. deVITO, there is no just reason for

delay of the implementation of the Court’s Orders of Au-

gust 4, 1978, October 18, 1978, December 21, 1978, Sep-

tember 17, 1979, and September 19, 1979, and, therefore,

I am directing a final judgment be entered as to these

Defendants pursuant to said Rule 54(b).

ENTERED this 15 day of January, 1980.

/s/ J. Waldo Ackerman

United States District Judge

— 62a —

APPENDIX I

Wisevuss

156 CASES WHICH TURN ON OR MD THE

BURDEN OF PROOF HOLDING OF MT. HEALTHY

CITY SCHOOL DISTRICT BD. OF ED. v. DOYLE,

429 U.S. 274 (1977)

Mt. Healthy cases by category:

Public Employee:

3, 4, 7, 18, 22, 25, 27, 28, 33, 36, 37, 39, 40, 43, 44, 45, 46,

47, 49, 52, 57, 58, 59, 63, 66, 68, 69, 71, 72, 73, 74, 75, 78,

80, 81, 83, 86, 87, 89, 90, 91, 92, 95, 96, 97, 98, 99, 100,

101, 104, 105, 106, 107, 108, 109, 110, 114, 117, 118, 120

(religious), 123, 124, 126, 127, 128, 129, 130, 131, 132, 133,

134, 135, 140, 141, 142, 144, 145, 147, 148, 149, 150, 151, 152

Labor:

10 (age), 17, 21, 24, 29, 32 (crim.), 34, 41, 48, 50, 65, 76,

88, 94, 136, 143 (age)

Race:

6, 61, 67, 68, 85, 93

Sex:

2, 12, 20, 64 (P.E.), 116, 139

Military:

5, 79, 153, 154, 155, 156

Prisoner:

8, 62, 119, 121

Miscellany: 82 (suit to enjoin criminal proceedings) 30

(Public Housing) 31 (Medicaid) 51 (Political) 26 (Cen-

sorship)

Cases which merely cite Mt. Healthy, but say nothing

about it:

1, 9, 11, 14, 15, 16, 18, 19, 23, 35, 38, 42, 53, 54, 55, 56, 60,

70, 77, 84, 102, 103, 111, 112, 113, 115, 122, 125, 137,

138, 146

11.

12.

—_

DISTRICT OF COLUMBIA CIRCUIT

Tygrett v. Barry, 627 F.2d 1279, 1282, 1287 (D.C.

Cir. 1980)

Hanson v. Hoffman, 628 F.2d 42, 49, 51-52 (D.C.

Cir. 1980)

Maealeski v. Treusdell, 562 F.2d 701, 715-16, 726

(D.C. Cir. 1977)

Pinkney v. District of Columbia, 439 F.Supp. 519,

535 (D.D.C. 1977)

Dilley v. Alexander, 440 F.Supp. 375, 378-79 (D.D.C.

1977)

FIRST CIRCUIT

DeGrace v. Rumsfeld, 614 F.2d 796, 805-6 (1st Cir.

1980)

Brule v. Southworth, 611 F.2d 406, 410-11 (1st Cir.

1979)

McDonald vy. Hall, 610 F.2d 16, 18-19 (1st Cir. 1979)

Needleman vy. Bohlen, 602 F.2d 1, 6 (1st Cir. 1979)

Loeb v. Textron, Inc., 600 F.2d 1003, 1009-10, 1019

(1st Cir. 1979)

Texas Instruments, Inc. v. N.L.R.B., 599 F.2d 1067,

1073 (ist Cir. 1979)

Fisher v. Flynn, 598 F.2d 663, 664-65 (1st Cir. 1979)

13.

14.

s 8 & £ 8 SB

— 64a —

Rosaly v. Ignacio, 593 F.2d 145, 148-49, 151 (ist

Cir. 1979)

Liberty Mut. Ins. Co. v. N.L.R.B., 592 F.2d 595, 606

(1st Cir. 1979)

Pilkington v. Bevilacqua, 590 F.2d 386, 388 (1st

Cir. 1979)

Gual Morales v. Hernandez Vega, 579 F.2d 677, 681

(1st Cir. 1978)

. N.L.R.B. v. South Shore Hospital, 571 F.2d 677,

682 (ist Cir. 1978)

Alicea Rosado v. Garcia Santiago, 562 F.2d 114,

117-18 (1st Cir. 1977)

Sam Miguel v. Lugo, 560 F.2d 34 (1st Cir. 1977)

Mack v. Cape Elizabeth School Bd., 553 F.2d 720,

722 (1st Cir. 1977)

. Coletti’s Furniture, Inc. v. N.L.R.B., 550 F.2d 1292,

1293 (1st Cir. 1977)

Marshall v. Elwell, 495 F.Supp. 306, 310-11 (D.N.H.

1980)

Harris v. White, 479 F.Supp. 996, 1006 (D.Mass.

1979)

Marshall v. Commonwealth Aquarium, 469 F.Supp.

690, 692 (D.Mass. 1979)

Needleman v. Bohlen, 457 F.Supp. 942, 946 (D.Mass.

1978)

Right To Read Defense Com. v. School Com., Etc.,

454 F.Supp. 703, 712 (D.Mass. 1978)

Pilkington v. Bevilacqua, 439 F.Supp. 465, 472-73,

475-77 (D.R.I. 1977)

— 65a —

SECOND CIRCUIT

Janusaitis v. Middlebury Volunteer Fire, Etc., 607

F.2d 17 (2d Cir. 1979)

29. Waterbury Community Antenna, Inc. v. N.L.R.B.,

31.

32.

587 F.2d 90 (2d Cir. 1978)

Davis v. Village Park II Realty Co., 578 F.2d 461,

464 (2d Cir. 1978)

Winters v. Lavine, 574 F.2d 46, 64-66 (2d Cir. 1978)

United States v. Winston, 558 F.2d 105, 110 (2d Cir.

1977)

33. Rocker v. Huntington, 550 F.2d 804, 806 (2d Cir.

1977)

34. McCarthy v. Cortland Cty. Community Action, 487

35.

36.

37.

S &

F.Supp. 333 (E.D.Mo. 1980)

Jones v. Kneller, 482 F.Supp. 204 (E.D.N.Y. 1979)

Burns y. Rovaldi, 477 F.Supp. 270, 275, 277-83

(D.Conn. 1979)

Lieberman v. Gant, 474 F.Supp. 848, 873-74 (D.Conn.

1979)

Economou vy. Butz, 466 F.Supp. 1351 (S.D.N.Y. 1979)

Janusaitis vy. Middlebury Volunteer Fire, 464 F.

Supp. 288 (D.Conn. 1979)

40. Oates v. United States Postal Serv. New York, 458

41.

F.Supp. 57, 59 (S.D.N.Y. 1978)

NLRB vy. Charles Batchelder Co., Ine., ........ F.2d

ee (2d Cir. 1981), 106 LRRM 3050, 3055-57 (2d

Cir. 1981)

Economou v. Butz, 84 F.R.D. 678 (S.D.N.Y. 1979)

THIRD CIRCUIT

Trotman v. Board of Trustees of Lincoln University,

635 F.2d 216 (3d Cir. 1980)

51.

52.

a

a

Smithers v. Bailar, 629 F.2d 892, 896-98 (3d Cir.

1980)

Skehan v. Bd. of Trustees of Bloomsburg State Col.,

590 F.2d 470 (3d Cir. 1978)

Niederhuber v. Camden Cty. Vocational, Etc., 495

F.Supp. 273 (D.N.J. 1980)

. Farkas v. Thornburgh, 493 F.Supp. 1168 (E.D.Pa.

1980)

Goodwin v. City of Pittsburgh, 480 F.Supp. 627

(W.D.Pa. 1979)

Eckerd v. Indian River Sch. Dist., 475 F.Supp. 1350

(D.Del. 1979)

Liotta v. National Forge Co., 473 F.Supp. 1139

(W.D.Pa. 1979)

Gewerte v. Jackman, 467 F.Supp. 1047, 1050, 1058-60

(D.N.J. 1979)

Knotts v. Bewick, 467 F.Supp. 931, 936-37 (D.Del.

1979)

Ruhlman v. Hankinson, 461 F.Supp. 145 (W.D.Pa.

1978)

. Bagby v. Beal, 455 F.Supp. 881, 889 (M.D.Pa. 1978)

Lewis v. Delaware State College, 455 F.Supp. 239,

248, 251 (D.Del. 1978)

56. DiLuigi v. Kafkalas, 437 F.Supp. 863, 872 (M.D.Pa.

57.

1977)

Aumiller v. University of Delaware, 434 F.Supp.

1273, 1292-93, 1303 (D.Del. 1977)

FOURTH CIRCUIT

58. Smith v. University of North Carolina, 632 F.2d 316,

331-34, 336-37, 339-40 (4th Cir. 1980)

59. Ledford v. Delancey, 612 F.2d 883, 885-86 (4th Cir.

1980)

61.

62.

65.

67.

74.

1.

yee

Bradford v. Textile Whrs. of America, AFL-CIO,

563 F.2d 1138, 1143-44 (4th Cir. 1977)

Fralin & Waldron, Inc. v. County of Henrico, Va.,

474 F.Supp. 1315, 1317-18 (E.D.Va. 1979)

Lamb v. Hutto, 467 F.Supp. 562, 565-66 (E.D.Va.

1979)

Miller v. Board of Ed. of Cty. of Lincoln, 450 F.

Supp. 106, 109-13 (S.D.W.Va. 1978)

Sumler v. City of Wimston-Salem, 448 F.Supp. 519,

528-29 (M.D.N.C. 1978)

Davis v. Ampthill Rayon Workers, Inc., 446 F.Supp.

681, 687 (E.D.Va. 1978)

Cherry v. Burnett, 444 F.Supp. 324, 326-27, 330-34

(D.Md. 1977)

Lewis v. Bethlehem Steel Corp., 440 F.Supp. 949, 966

(D.Md. 1977)

Johnson v. Butler, 433 F.Supp. 531, 535-36 (W.D.Va.

1977)

FIFTH CIRCUIT

Bickel v. Burkhart, 632 F.2d 1251, 1255-58 (5th Cir.

1980)

Williams v. Rhoden, 629 F.2d 1099, 1103 (5th Cir.

1980)

. Van Ooteghem v. Gray, 628 F.2d 488, 492-93, 497-99

(5th Cir. 1980)

D’ Andrea v. Adams, 626 F.2d 469, 472 (5th Cir. 1980)

. Tanner v. McCall, 625 F.2d 1183, 1189-90, 1192-94

(5th Cir. 1980)

Downing v. Williams, 624 F.2d 612, 622-24 (5th

Cir. 1980)

Smith v. Price, 616 F.2d 1371, 1375-77, 1379 (5th

Cir. 1980)

76.

77.

81.

82.

— 68a —

Whiting v. Jackson State University, 616 F.2d 116,

122 (5th Cir. 1980)

Robinson v. Price, 615 F.2d 1097, 1098-1100 (5th

Cir. 1980)

Kingsville Independent Sch. Dist. v. Cooper, 611

F.2d 1109, 111-14 (5th Cir. 1980)

Jones v. Alexander, 609 F.2d 778, 782-83 (5th Cir.

1980)

Lindsey v. Bd. of Regents of Univ., Etc., 607 F.2d

672, 676 (5th Cir. 1979)

Davis v. Wiliams, 598 F.2d 916, 920 (5th Cir. 1979)

Wilson v. Thompson, 593 F.2d 1375, 1385-87 (5th

Cir. 1979)

Goss v. San Jacinto Junior College, 588 F.2d 96,

99-100 (5th Cir. 1979)

84. Molina v. El Paso Independent Sch. Dist., Etc., 583

91.

92.

F.2d 213, 215 (5th Cir. 1978)

United States v. Texas Ed. Agency, 579 F.2d 910,

916 (5th Cir. 1978)

. Hastings v. Bonner, 578 F.2d 136, 141 (5th Cir. 1978)

. Love v. Sessions, 568 F.2d 357, 360-61 (5th Cir. 1978)

Federal-Mogul Corp. v. N.L.R.B., 566 F.2d 12465,

1259, 1265 (5th Cir. 1978)

. Stewart v. Bailey, 561 F.2d 1195, 1195-96 (5th Cir.

1977)

Garza v. Rodriguez, 559 F.2d 259, 261-62 (5th Cir.

1977)

Ayers v. Western Line Consol. Sch. Dist., 555 F.2d

1309, 1314-17 (5th Cir. 1977)

Johnson v. San Jacinto Jr, College, 498 F.Supp.

555, 578 (S.D.Tex, 1980)

107.

108.

— 69a —

. Wells v. Hutchinson, 499 F.Supp. 174, 193 (E.D.Tex.

1980)

Wright v. Allis-Chalmers, 496 F.Supp. 349, 353 (N.D.

Ala. 1980)

. Hillis v. Stephen F. Austin State University, 486

F.Supp. 663, 666-68 (E.D.Tex. 1980)

Dean v. Timpson Independent Sch. Dist., 486 F.Supp.

302, 307-8 (E.D.Tex. 1979)

. Jordan v. Cagle, 474 F.Supp. 1198, 1210-12 (N.D.

Miss. 1979)

. Barbre v. Garland Independent School Dist., 474

F.Supp. 687, 697-99 (N.D.Tex. 1979)

Courts v. Economic Opport. Auth., Etc., 451 F.Supp.

587, 593 (S.D.Ga. 1978)

Willingham v. Carter, 447 F.Supp. 301, 302-3, 305

(S.D.Ga. 1978)

. Tanner v. McCall, 441 F.Supp. 503, 509, 511-15

(M.D.Fla. 1977)

Citron v. Jackson State University, 456 F.Supp. 3,

10, 16 (S.D.Miss. 1977)

. Smith v. Price, 446 F.Supp. 828, 833 (M.D.Ga. 1977)

Johnson v. Cam, 430 F.Supp. 518, 521 (N.D.Ala.

1977)

SIXTH CIRCUIT

. Columbus Ed. Ass’n v. Columbus City School Dist.,

623 F.2d 1155, 1159-60 (6th Cir. 1980)

Hickman v. Valley Local Sch. Dist. Bd. of Ed., 619

F.2d 606, 607-10 (6th Cir. 1980)

Marwil v. Baker, 499 F.Supp. 560, 570-72 (E.D.Mich.

1980)

An-Ti Chai v. Michigan Technological University,

493 F.Supp. 1137, 1158-59 (W.D.Mich. 1980)

109.

110.

111.

112.

113.

114.

115.

116.

117.

118.

119.

120.

121.

122.

123.

124.

a

Heit v. Bugbee, 494 F.Supp. 66, 66-67 (E.D.Mich.

1980)

Carr v. Board of Trustees of University of Akron,

465 F.Supp. 886, 902 (N.D.Ohio 1979)

Arnold v. Ballard, 448 F.Supp. 1025, 1029, 1031

(N.D.Ohio 1978)

Sutton v. National Distillers Product Co., 445 F.

Supp. 1319, 1327-28 (S.D.Ohio 1978)

Berry v. School Dist. of Benton Harbor, 442 F.Supp.

1280, 1293 (W.D.Mich. 1977)

Hollifield v. McMahan, 438 F.Supp. 591, 593 (E.D.

Tenn. 1977)

Penick v. Columbus Bd. of Ed., 429 F.Supp. 229,

260 (S.D.Ohio 1977)

SEVENTH CIRCUIT

Sherkow v. State of Wis., 630 F.2d 498, 502 (7th

Cir. 1980)

McGill v. Board of Ed. of Pekin Elementary Sch.,

602 F.2d 774, 777-79 (7th Cir. 1979)

Eickman v. Ind. State Unw. Bd. of Trustees, 597

F.2d 1104, 1108-9 (7th Cir. 1979)

Buise v. Hudkins, 584 F.2d 223, 232 (7th Cir. 1978)

Palmer v. Board of Ed. of City of Chicago, 466 F.

Supp. 600, 604 (N.D.II. 1979)

Wetmore v. Fields, 458 F.Supp. 1131, 1145-46 (W.D.

Wis. 1978)

Newborn v. Morrison, 440 F.Supp. 623, 627 (S.D.IIL

1977)

Weissbaum v. Hannon, 439 F.Supp. 873, 879-80, 882

(N.D.Ill. 1977)

Lasco v. Koch, 428 F.Supp. 468, 475-76 (S.D.IIl.

1977)

125.

126.

127.

128.

129.

130.

131.

132.

133.

134.

135.

136.

137.

138.

ee

EIGHTH CIRCUIT

Lemons v. Morgan, 629 F.2d 1389, 1390 (8th Cir.

1980)

Nathanson v. United States, 630 F.2d 1260, 1263

(8th Cir. 1980)

Zoli v. Eastern Alamakee Community Sch. Dist., 588

F.2d 246, 249-51 (8th Cir. 1978)

Greminger v. Seaborne, 584 F.2d 275, 278 (8th Cir.

1978)

Meyr v. Bd. of Ed. of Affton Sch. Dist., 572 F.2d

1229, 1232-33 (8th Cir. 1978)

Wiliams v. Day, 553 F.2d 1160, 1162-63 (St Cir.

1977)

Lee v. Consolidated Sch. Dist. No. 4, Grandview, 494

F.Supp. 987, 990-91 (W.D.Mo. 1980)

Hickingbottom v. Easley, 494 F.Supp. 980, 984-86

(E.D.Ark. 1980)

Cooper v. Ross, 472 F.Supp. 802, 809, 811-12, 814

(E.D.Ark. 1979)

Gerrin v. Hickey, 464 F.Supp. 276, 282 (E.D.Ark.

1979)

Atcherson v. Siebenmamn, 458 F.Supp. 526, 536-37

(S.D.Iowa 1978)

Taylor v. Franklin Drapery Co., Inc., 441 F.Supp.

279, 297-98 (W.D.Mo. 1977)

Giordano v. Roudebush, 448 F.Supp. 899, 908 (S.D.

Iowa 1977)

NINTH CIRCUIT

Lutcher v. Musicians Union Local 47, 633 F.2d 880,

885 (9th Cir. 1980)

De La Cruz v. Tormey, 582 F.2d 45, 58-59 (9th Cir.

1978),

140.

141.

1977), rehearing of 546 F.2d 1329 (9th Cir. 1976)

142.

143.

144.

145.

146.

147.

148.

149.

150.

151.

152.

153.

154.

155.

156.

_

Haimowite v. University of Nevada, 579 F.2d 526,

529-30 (9th Cir. 1978)

Wagle v. Murray, 560 F.2d 401, 402-3 (9th Cir.

Bernasconi v. Tempe Elementary School Dist. No. 3,

548 F.2d 857, 861-62 (9th Cir. 1977)

Olsen v. Southern Pac. Transp. Co., 480 F.Supp.

773, 779-80 (N.D.Cal. 1979)

Fujwara v. Clark, 477 F.Supp. 822, 833-37 (D.

Hawaii 1979)

Upshur v. Love, 474 F.Supp. 332, 337, 339 (N.D.Cal.

1979)

Fujwara v. Clark, 477 F.Supp. 809, 816-19, 821

(D.Hawaii 1979)

Fujwara v. Clark, 477 F.Supp. 794, 800-02 (D.Hawaii

1978)

Branch v. School Dist. No. 7 of Ravalli County, 4382

F.Supp. 608, 610-611 (D.Mont. 1977)

TENTH CIRCUIT

Francia v. White, 594 F.2d 778, 783 (10th Cir. 1979)

Downes v. Beach, 587 F.2d 469, 470-71 (10th Cir.

1978)

Schmidt v. Fremont County Sch. Dist. No. 25, Wyo.,

558 F.2d 982, 984-85 (10th Cir. 1977)

Franklin v. Atkins, 562 F.2d 1188, 1190-92 (10th

Cir. 1977)

COURT OF CLAIMS

Doyle v. United States, 599 F.2d 984 (Ct.Cl. 1979)

Skinner v. United States, 594 F.2d 824 (Ct.Cl. 1979)

Sanders v. United States, 594 F.2d 804 (Ct.Cl. 1979)

Ryder v. United States, 585 F.2d 482 (Ct.Cl. 1978)

and Tl

APPENDIX J

REPLY BRIEF OF DEFENDANTS-APPELLANTS

AND ANSWERING BRIEF OF DEFENDANTS-

CROSS-APPELLEES, PAGES 12-13

[12] The attempt to show that the court below applied

the legal tests correctly and that the burden of proof was

on the defendants misses the mark. Clearly the burden

was on plaintiffs to establish that political discrimination

‘*played a ‘substantial’ role’’ in the decision. Givhan v.

Western Line Consol. School Dist., 439 U.S. 410, 416

(1979). It is also indisputable that the court found only

that plaintiffs ‘‘might not have been chosen’’ for layoffs

but for their political affiliation. 457 F. Supp. at 243.

That test is an unacceptably watered down version of

Giwhan, which requires a showing that ‘‘but for’’ the

exercise of protected conduct, the employee would have

been dismissed, no matter what the procedural burdens

may be at trial (439 U.S. at 417). In this case it is vir-

tually inconceivable that the State officials would have

allowed both the Wren and Bradley plaintiffs to stay on

the payroll except for the political affiliation of the Wren

plaintiffs when the department had been laying men off

even before the Bradley plaintiffs returned (e.g., CA.635-

36).*

Branti v. Finkel, 48 U.S.L.W. at 4333-34, dispels any

doubt about the necessity of plaintiffs’ showing here that

impermissible political discrimination was the only reason

for the layoffs. The opinion for the Court by Mr. Justice

Stevens [13] thrice reiterates the language of Elrod v.

Burns, 427 U.S. at 350, that ‘‘the First Amendment prohib-

its the dismissal of a public employee solely because of his

Indeed, it is stipulated here, that ‘‘[b]ut for the Brad-

ley case none of the plaintiffs here would not have been

laid off and this case would not have arisen,’’ and the

District Court so found (457 F. Supp. at 238).

alll as

private political beliefs.’’ (Emphasis supplied.) That is

a finding which defendants submit the evidence in this

case would not remotely support.

In sum, this case is different from Elrod, Branti and

all the other cases involving patronage dismissals. None

of the underlying First Amendment considerations in

_ those cases is present when a court order resulted in a

surplus of manpower and the only men available to be

laid off were members of one political party. There was

no coercion of political beliefs, no unconstitutional condi-

tion on employment, no selection for political reasons

at all. Many other facts indicate that plaintiffs were not

laid off ‘‘soiely’’ for their political beliefs, including the

consultation with the office of the Attorney General who

was a Republican. [Emphasis in this sentence only added

by Petitioners] The evidence presented is legally insuf-

ficient to establish a First Amendment violation, and the

judgment of the court below to the contrary, which has

no evidentiary support, is unquestionably both ‘‘clearly

erroneous’’ and based upon a misunderstanding of the law.

Il. THE DOCTRINE OF QUALIFIED IMMUNITY

BARS IMPOSITION OF DAMAGES AGAINST

DEFENDANTS HANNIGAN AND RHOADS.

Defendants have argued that the doctrine of qualified

immunity bars the imposition of damages against Han-

nigan and Rhoads because under the facts of this case

there was no clearly