# Brief for the Respondent in Opposition — Democratic Organization of Cook County v. Shakman

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the Respondent in Opposition
- **Published:** January 1, 1971
- **Citation:** 402 U.S. 909

## Text

A WOE NOTE PLR RENTON FOER ORE NEE IROD IEE IDEN RRS TRS ™ Ane

BYPREME COUN TY
MAR 29 1971

E. ROBERT SEAVER. Cf

Supreme Court of the Anited States

OcronerR TERM, 1970.

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IN THE

No. 1466

THE DEMOCRATIC ORGANIZATION OF COOK

COUNTY, ETC., ET AL.,
Petitioners.

VS.

MICHAEL L. SHAKMAN anp PAUL M. LURIE, eErc.,
Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

BRIEF FOR RESPONDENTS IN OPPOSITION.

R. Dicksy HamiLton,
Rosert PLorTKIN,
208 South LaSalle Street,
Chicago, Illinois 60603,
C. Ricuarp JOHNSON,
One First National Plaza,
Suite 4200,
Chicago, Illinois 60670,
Rocer R. Foss,
135 South LaSalle Street,
Chicago, Illinois 60603,
Attorneys for Respondents.

Mareh 26, 1971.

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PAGE
Statement of the Cane i... si's hc caseas ceded aks 1
The Gomme io ioc i OS EA 2
The District Court’s Opinion .................. 6§
The Court of Appeals’ Opinion ................ 6
pS | PPE ON Cee iy ee eee Py ee eee i eo eee 7
I. The Case Is Not Ripe for Review .......... 7

II. The Decision of the Court of Appeals Imposes

No Hatch Act Restrictions on: Public Em-
CORD si... idunns dads nachos Dana eee tae 7
III. There Is No Conflict of Decisions .......... 8

IV. The Court of Appeals Did Not Err in Ruling
That the Case Is Justiciable ............... 9
CINE ho Sand ds chee cawaue cheek cue eeees Coe 11

CrraTIons.
Cases.

American Construction Co. v. Jacksonville R. R. Co.,

WOE Gx Gh, Bee TOD hv bcacknS ads 00505 bsiedinecas 7
Baker v. Carr, 369 U. S. 186 (1962) ................ 11
Bond v. Floyd, 385 U. S. 116 (1966) ................. 10
Brockington v. Rhodes, 396 U. S. 41 (1969) .......... 5
Brotherhood of Locomotive Firemen v. Bangor & Ar-

roostock R. R. Co., 389 U. S. 327 (1967) ............ 7
Cafeteria Workers v. McElroy, 367 U. S. 886 (1961) .. 9
Cramp v. Board of Public Instruction, 368 U. S. 278

COBORD nes ex Ue cas cdedandedasss K4n0eteunee eeu 10

ii

Irish v. Democratic-Farmer-Labor Party of Minnesota,

399 F. 2d 119 (8th Cir. 1968) .........-.. esse eeeee 8,9
Pickering v. Board of Education, 391 U. S. 563 (1968) 10
Shelton v. Tucker, 364 U.S. 479 (1960) .......... errr
Wieman v. Updegraff, 344 U. S. 183 (1952) .......... 10

Constitution.

First, Fifth and Fourteenth Amendments to Constitu-

tion of the United Bates «o.oo occcacccsancwasvecs 4
Statutes.
Sections 1983, 1985, 1986 and 1968, Title 42, United
ae BL ee oe vk ab es Chae a a eee 4
&8o

Supreme Court of the Anited States

OctrosEeR TERM, 1970.

No. 1466.

THE DEMOCRATIC ORGANIZATION OF COOK

COUNTY, ErTc., ET AL.,
Petitioners,
vs.

MICHAEL L. SHAKMAN anp PAUL M. LURIE, ETC.,
Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

BRIEF FOR RESPONDENTS IN OPPOSITION.

STATEMENT OF: THE CASE.

The complaint in this case was filed on October 17, 1969,
in the United States District Court for the Northern
District of Illinois. The complaint was dismissed without
an evidentiary hearing by the District Court on Novem-
ber 6, 1969. That dismissal was reversed by the United
States Court of Appeals for the Seventh Circuit on October
23, 1970, the case being remanded to the District Court for
further proceedings. [The decision of the Court of Appeals
is reported at 435 F. 2d 267 (7th Cir. 1970).] Petitions for

2

rehearing im banc were denied on December 18, 1970. The
petition for a writ of certiorari seeks a review of the
decision of the Court of Appeals remanding the case for
further proceedings. The decision sought to be reviewed is,
of course, not a final judgment; indeed, no evidentiary
hearing has yet been held.

The Complaint.

Since the decision sought to be reviewed involves only
the sufficiency of the complaint, it is important briefly to
describe its allegations. The complaint is brought by re-
spondent Michael L. Shakman, an independent candidate
(not the candidate of any political party) for Delegate to
the Illinois Constitutional Convention, and by respondent
Paul M. Lurie, one of his supporters [4*, 26]. It is brought
on behalf of the respondents and also as a class action on
behalf of all present and future independent candidates
for public office in Cook County, Illinois, as well as on
behalf of classes of present and future voters and of tax-
payers in Cook County [5, 26, 30]. The defendants (peti-
tioners) are elected officials of the City of Chicago and
Cook County, the Democratic County Central Committee
of Cook County, officials and members of that Central Com-
mittee, the City of Chicago and a corporation known as
The Democratic Organization of Cook County [5-8].

The complaint sets out six counts, all of which seck
redress for deprivations of rights under the United States
Constitution and the civil rights laws. One count is brought
on behalf of respondent Shakman and other independent
candidates for public office, including those in future elec-
tions; another count is brought on behalf of both respond-
ents and others as voters, including those in future elec-
tions, and a third count is brought on behalf of respondents

* Unless otherwise indicated, page numbers refer to the Appendix
for the Court of Appeals.

3

and others as taxpayers. As to each such claim, the com-
plaint also adds in separate counts allegations that the
defendants conspired to deprive plaintiffs of such rights
[31-32].

Basically, the complaint alleges that many thousands of
public employees are required, as a condition of obtaining
and maintaining public employment, to give political sup-
port (including money and work) to the defendant partisan
political organizations and officials or to their candidates
for public office [11-15]. These employees are employed
by the City of Chicago, the County of Cook and other state
and local governmental entities in Cook County. The com-
plaint alleges that the number of such public employees so
coerced into giving such political support is between 8,000
and 30,000. It is impossible to state a more precise number,
the complaint alleges, because of the concealment by the
defendants and others allied with them of the facts con-
cerning these employees [12]. Many of the jobs affected
are of a clerical, ministerial or labor nature (such as truck
drivers, office clerks, sewer workers, public health techni-
cians, ete.) [12, 41, 58].

In specific, the complaint alleges that thousands »f such
employees are required as a condition of their pubiic em-
ployment to contribute money (often a percentage of their
wages) to defendant partisan political organizations and
officials or to their candidates [13]. Also, thousands of such
public employees are, it is alleged, required as a condition
of their public employment to do active political campaign-
ing in the precincts—door to door solicitation, putting up
posters and the like—on behalf of the defendant political
organizations and officials or their candidates [13]. These
public employees are further required as a condition of
such employment not to support candidates for public
office opposed or not endorsed by the defendant political
organizations and officials [15, 18].

4

The complaint still further alleges that many of such
public employees are permitted and, indeed, required as
a condition of their public employment to do partisan
political work in support of candidates of the defendant
partisan political organizations and officials on public time
while being paid with public funds raised by taxation [14].

Such public employees who fail to do such political work
for, or to contribute money to, the defendant partisan po-
litical organizations and officials or their candidates, or
who give political support to independent candidates (such
as plaintiff Shakman), are discharged from or demoted or
otherwise punished in their public employment by defend-
ants [18]. Moreover, persons who fail to give or to prom-
ise to give such political support or who fail to receive the
‘‘sponsorship’’ of defendant political organization officials
or some other politically influential persons connected with
such organizations are excluded from such public employ-
ment positions [12].

The complaint describes in detail how these public em-
ployment practices perpetrated by defendants serve to vio-
late the constitutional rights of independent candidates for
public office [19-23]. The complaint also describes how the
practices violate the constitutional rights of plaintiffs, and
the classes they represent, as voters and as taxpayers
[19-23]. In sum, the public employment practices described
in the complaint operate to create an army of political
workers and a giant political treasury, all paid for with
public funds, on behalf of candidates endorsed by defendant
partisan political organizations and officials and in opposi-
tion to independent candidates such as plaintiff Shakman.
These practices deprive plaintiffs of rights under the First,
Fifth and Fourteenth Amendments to the United States
Constitution and under Sections 1983, 1985, 1986 and 1988
of Title 42 of the United States Code [19-23].

5

The election for Delegate to the Constitutional Conven-
tion has passed but, as the Court of Appeals indicated, the
abuses described in the complaint are alleged to be of a
continuing nature [petition A10].* The complaint seeks a
declaratory judgment that the practices complained of are
illegal and unconstitutional [33]. Moreover, plaintiff Shak-
man alleges he intends to be an independent candidate in
the future, and plaintiff Lurie alleges he intends to support
him in the future. Respondents and many other qualified
voters frequently support and vote for independent candi-
dates and intend to do so in the future [28]. The case,
as previously stated, is also brought on behalf of classes
of present and future candidates and voters as well as
taxpayers [24, 28]. See Brockington v, Rhodes, 396 U. 8S.
41 (1969).

The complaint asks basically for preliminary and perma-
nent injunctive relief prohibiting the conditioning of such
public employment on public employees’ political support
(including work and money) of the defendant political
organizations or of their candidates. Injunctive relief is
also asked to prohibit defendants from discharging, demot-
ing or otherwise punishing public employees in their pubiic
employment (or threatening to do so) for such employees’
political beliefs or lawful political conduct. It is also sought
to prohibit defendant public officials from allowing public
employees to do partisan political work on public time.
As previously indicated, the complaint further seeks a de-
claratory judgment declaring such practices illegal and
unconstitutional. Plaintiffs also request money damages
and other necessary relief [33-37].

*In fact, respondent Shakman lost the election by 623 votes,
out of more than 47,000 votes cast. This fact was pres:nted to the
Court of Appeals [Reply Brief 3]. Thus Shakman was defeated
by a number of votes less than the probable number of public

employees in the electoral district whose public employment was
alleged to be conditioned on political support of Shakman’s

opponent [Reply Brief 3].

The District Court's Opinion,

The District Court dismissed the complaint on two
grounds; the complaint was said to be ‘‘conclusory”’ and
the plaintiffs were said to lack standing to contest the
public employment practices alleged in the complaint. These
two grounds were unanimously reversed by the Court of
Appeals. Neither of these grounds is presented for review
by this Court.

The Court of Appeals’ Opinion.

The Court of Appeals found that the allegations of the
complaint properly stated claims under the civil rights laws
and the Constitution. The Court stated that, ‘‘The interests
of candidates in official treatment free from intentional or
purposeful discrimination are entitled to constitutional
protection. .. . The equal protection clause secures from
invidious official discrimination the voter’s interest in a
voice in government of equal effectiveness with other
voters.’’? On the basis of these principles the Court of
Appeals held that the Constitution prohibited ‘‘the misuse
of official power over public employees so as to create a
substantial, perhaps massive, political effort in favor of
the ins and against the outs,’’ as alleged in,the complaint.
[petition A14.]

The Court of Appeals further held that the alleged pub-
lic employment practices imposed unconstitutional condi-
tions on public employment. ‘‘ Except ‘to the extent some
statute validly restricts political expression or activity by
public employees, such individuals enjoy the same right of
political association and expression, on their on time, as
anyone else.’’ [petition A15.] The Court of Appeals or-
dered the cause remanded for further proceedings.

ARGUMENT.

Respondents respectfully submit that a writ of certiorari
should not be issued because the case is not ripe for review.
Respondents further submit that the arguments given by
petitioners why this case should be reviewed are based on
misstatements of the nature of the case and on a failure to
consider the clear preexisting law.

I. THE CASE IS NOT RIPE FOR REVIEW.

The decision of the Court of Appeals which petitioners
would have this Court review is not a final judgment.
Rather, it reversed the dismissal of the complaint and re-
manded the. case to the District Court for further pro-
ceedings. No injunctive or other relief has yet been granted.
As this Court has indicated, normally such non-final judg-
ments will not be reviewed. See Brotherhood of Loco-
motive Firemen v. Bangor & Aroostock R. R. Co., 389 U. S.
327, 328 (1967), where this Court stated, ‘‘because the
Court of Appeals remanded the case, it is not yet ripe
for review by this Court’’, and American Construction Co.
v. Jacksonville R. R. Co., 148 U. S. 372, 384 (1893).

Review of the case at this stage, without the benefit of
any factual record, would create the possibility of unneces-
sary or multiple review by this Court.

II. THE DECISION OF THE COURT OF APPEALS IMPOSES
NO HATCH ACT RESTRICTIONS ON PUBLIC EM-
PLOYEES.

The petitioners seek to represent the case as an attempt
to impose Hatch Act restrictions on public employees [pe-
tition 12]. The truth is just the opposite. Plaintiffs do not

8

seek to prohibit any public employees from doing any law-
ful political work for any party or candidate on their own
time, and no such prohibition is implied in the Court of
Appeals’ decision. The decision below would not prohibit
public employees from engaging in political activities, as
does the Hatch Act. Rather, its effect is just the opposite.
It would prohibit the coercion of public employees into
working for and contributing money to one political party
and its candidates and into not working for other candi-
dates, regardless of their own desires. It would thus
remove restrictions on political activities of public em-
ployees, leaving them free to engage on their own time in
whatever lawful political activities they choose, or to en-
gage in none if they so desire.

In their statement of the case, petitioners go so far in
seeking to misrepresent the decision below as imposing
restrictions on public employees as actually to mis-
state the Court’s language. The petition for a writ of cer-
tiorari states (incorrectly) that the decision of the Court
of Appeals held ‘‘that the Constitution protects Respond-
ents from the use of official power of public employees’’
[petition 8, emphasis supplied]. In fact, the decision holds
that the complaint states a claim as to the ‘‘misuse of
official power over public employees’’ [petition Al4, em-
phasis supplied].

Ill. THERE IS NO CONFLICT OF DECISIONS.

The decision below is not, as petitioners suggest, incon-
sistent with Irish v. Democratic-Farmer-Labor Party of
Minnesota, 399 F. 2d 119 (8th Cir. 1968). In Irish, the
Kighth Circuit held that it would not interfere with the
apportionment of state political party convention seats.
Irish does not in any way conflict with the decision below.
It simply is not in point. The gravamen of the present

9

complaint concerns not the purely internal workings of a
political party, as was involved in Jrish, but the unconstitu-
tional use by public officials of public employees and public
funds.

IV. THE COURT OF APPEALS DID NOT ERR IN RULING
THAT THE CASE IS JUSTICIABLE.

Petitioners submit that this Court ought to review the
decision below because ‘‘the complaint is clearly a non-
justiciable political question’’ [petition 9]. Petitioners
make the remarkable assertion that the federal judiciary is
prevented from examining the constitutionality of any em-
ployment conditions imposed by local governments, how-
ever offensive to First Amendment freedoms, because ‘‘the
hiring and dismissal [of public employees] . . . is in the sole
discretion of the executive and is examinable only po-
litically. . . .”? [petition 10]. In the papers filed in the
Court of Appeals, petitioners’ position was stated even
more blatantly: ‘‘subject to statutory limitation, local gov-
ernments may adopt the same employment practices as any
individual or company.’’ [Party’s Petition for Rehearing
4,]

This is, of course, completely wrong. ‘‘. . . [T]he state
and federal governments, even in the exercise of their in-
ternal operations, do not constitutionally have the complete
freedom of action enjoyed by a private employer.... We
may assume that Rachel Brawner could not constitutionally
have been excluded from [employment at] the Gun Fac-
tory if the announced grounds for her exclusion had been
patently arbitrary or discriminatory—that she could not
have been kept out because she was a Democrat or a Metho-
dist.’’ Cafeteria Workers v. McElroy, 367 U.S. 886, 897-898
(1961) (Emphasis supplied).

Contrary to petitioners’ assertion, the law, as Cafeteria

~ PN nn ee ene

10

Workers shows, is settled that states may not make public
employment subject to unconstitutional conditions. No
federal case has ever held that the ‘‘nolitical question”’
doctrine places such unconstitutional conduct beyond the
reach of the federal courts.

In numerous cases this Court has directly considered the
constitutionality of state imposed requirements for obtain-
ing or retaining public employment and a number of such
cases have held that such requirements involved judicially
cognizable violations of constitutional rights. See, for ex-
ample, Wieman v. Updegraff, 344 U. S. 183 (1952) [overly
broad state loyalty oath], where Mr. Justice Clark, writ-
ing for a unanimous Court, stated that while states could
establish reasonable conditions on public employment, it
would be unconstitutional to ‘‘enact a regulation providing
that no Republican, Jew or Negro shall be appointed to
federal office,’’ 344 U. S. at 191-92; also Pickering v. Board
of Education, 391 U. 8. 563 (1968) (school teacher dis-
missed for letter criticizing school board) ; Cramp v. Board
of Public Instruction, 368 U. 8. 278 (1961) (vague loyalty
oath) ; Shelton v. Tucker, 364 U. S. 479 (1960) (requirement
of listing membership in organization) ; and Bond v. Floyd,
385 U. S. 116 (1966) (court had jurisdiction to consider
constitutionality of failure to seat state legislator).

The decision of the Court of Appeals does not confiict
with the decisions of this Court on justiciability. Rather,
it is petitioners’ novel and dangerous theory that the ‘‘po-
litical question’’ doctrine excludes judicial examination of
the constitutionality of any state imposed requirements for
obtaining and maintaining public employment which is in
conflict with the existing decisions.

Petitioners further assert that the case involves a ‘‘po-
litical question”? because the constitutionality of the state
practices complained of may be dealt with only by the state

SMITE ML EEE AEE VILE SILI RE OIE BNA LET ET SS ON TR AIOAEP OE A FIN a SIEM nese =

11

legislature. This point has, however, already been decided
by this Court adversely to petitioners’ contentions. Baker
v. Carr, 369 U. S. 186, 210 (1962), is quite clear:

‘¢{I]t is the relationship between the judiciary and
the coordinate branches of the Federal Government,
and not the federal judiciary’s relationship to the
States, which gives rise to the ‘political question.’ ’’

CONCLUSION.

The decision of the Court of Appeals is totally consistent
with and is required by the existing case law. Petitioners
have failed to demonstrate any reason why this Court
should review the decision below, particularly at this stage’
of the proceedings. Therefore, respondents submit that the
petitions for a writ of certiorari should be denied.

Respectfully submitted,

R. Dickey Hamiton,
Rosert PLorKin,
208 South LaSalle Street,
Chicago, Illinois 60603,
C. Richarp JoHNsoN,
One First National Plaza,
Suite 4200,
Chicago, Illinois 60670,
Rocer R. Foss,
135 South LaSalle Street,
Chicago, Illinois 60603,
Attorneys for Respondents.
March 26, 1971.

POM «—- TROTTER MY

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0609%3A2. Public record. Not legal advice.