Petition for Writ of Certiorari — Lewis v. Illinois State Employees Union, Council 34

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IN THE

Supreme Court of the Gnited

Ocroser Term, 1972.

No. 72-8 “9

JOHN W. LEWIS, ryvivipvaty anp as SEcrETARY oF STATE

OF THE State oF ILiinots,

Petitioner.

Us.

ILLINOIS STATE EMPLOYEES UNION, COUNCIL 34,

AMERICAN FEDERATION OF STATE, COUNTY

AND MUNICIPAL EMPLOYEES, AFL-CIO, an uniy-

CORPORATED LABOR ORGANIZATION ; ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT.

Don H. Revsen,

LAWRENCE GUNNELS,

STEvEN P. Hanv er,

130 East Randolph Drive,

Chicago, Illinois 60601,

Attorneys for Petitioner.

Of Counsel:

Krerkianp & Exus,

Chicago, Illinois.

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Constitutional Provision Involved .................. 2

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CITATIONS.

Cases.

Alomar v. Dwyer, 447 F. 2d 482 (1971), cert. denied,

eS. We Be SD bb cdeccccivcnscs 4, 6, 7, 8,9, 10, 11

American Federation of State, County and Municipal

Employees, AFL-CIO v. Shapp, 280 A. 2d 375

DE cbse shart Matbedeentnss<édethetecsvexs 4,7

Bailey v. Richardson, 182 F. 2d 46 (D. C. Cir.) aff’d

by an equally divided Court, 341 U.S. 918 (1951). .8, 9, 10

Board of Regents v. Roth, 408 U. S. 564 (1972)...... 9, 10

Burns v. Elrod, ........... F. Supp. ........... (N. D. Ill. No.

eee eae os dnc ebesewau den eae’ 8,9

Cafeteria & Restaurant Workers Union, Local 473,

AFL-CIO v. McElroy, 367 U. S. 886, 896 (1961)... .5,11

Crenshaw v. United States, 134 U. S. 99, 108 (1890)... 5

Keim v. United States, 177 U. S. 290, 293-94 (1900).. 5

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

Norton v. Blaylock, 409 F. 24 772 ren, 47

Parsons v. United States, 167 U.S. 324, 331-34 (1897) 5

Perry v. Sindermann, 408 U. S. 593 GRE s heey aes 9,10

Pickering v. Board of Education, 391 U. S. 563 (1968) 49

Shakman v. Democratic Organization of Cook County,

vennasil F. Supp. ........ (N. D. IIL, No. 69 C 2145) ......9.19

Taylor and Marshall v. Beckham (No. 1), 178 U.S. 548,

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Statutes and Rules.

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IN THE

Supreme Court of the Gnited States

OcrosEer Trem, 1972.

JOHN W. LEWIS, rnpivipvua.ty anp as SECRETARY OF STATE

OF THE StaTeE oF ILLINOIS,

Petitioner,

vs.

ILLINOIS STATE EMPLOYEES UNION, COUNCIL 34,

AMERICAN FEDERATION OF STATE, COUNTY

AND MUNICIPAL EMPLOYEES, AFL-CIO, an unin-

CORPORATED LABOR ORGANIZATION ; ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT.

OPINIONS BELOW.

The majority, concurring and dissenting opinions of the

Seventh Circuit are not yet reported; they are reproduced

as Appendix ‘‘A’’, infra. The Findings of Fact and Con-

clusions of Law of the U. S. District Court for the Southern

District of Illinois are not reported but are reproduced

as Appendix ‘‘B’’, infra.

JURISDICTION.

The decision of the Seventh Circuit was rendered on

September 18, 1972. The jurisdiction of this Court is in-

voked under 28 U. S. C. § 1254(1).

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BORNEMAN TERELS

QUESTION PRESENTED.

Whether the political patronage system of government

employment violates the First Amendment.

CONSTITUTIONAL PROVISION INVOLVED.

United States Constitution, Amendment I:

‘Congress shall make no law... . abridging . . . the

right of the people peaceably to assemble, and to peti-

tion the Government for a redress of grievances,’’

STATEMENT OF THE CASE.

Respondents were employed in the office of the late Paul

Powell, Illinois Secretary of State ; all held minor non-ciyi]

service jobs such as clerks, building workers and license

examiners. (App. 8-10, 563.)! Mr. Powell died in October,

1970; the petitioner herein, John W. Lewis, was appointed

by the Governor of Illinois to serve the remainder of Mr.

Powell’s term. Thereafter, the respondents received letters

terminating their employment; no reasons were given for

the terminations. (App. 18-35.)

Respondents then brought suit under the Civil Rights

Act of 1871,? alleging they were discharged for political

party reasons, i.e., because they were Democrats and re-

fused to become Republicans or to support the Republican

Party. They claimed that such discharge infringed their

First Amendment right of free political association, and

sought relief reinstating them to their jobs, awarding them

1. ‘‘App.’’ citations herein refer to the typed Appendix

filed by respondents in the Court of Appeals and now lodged with

the Clerk of this Court.

2. 42 U.S. C. § 1983.

3

back pay and enjoining similar discharges of other em-

ployees in the future. (App. 15-17.)

Petitioner filed a motion to dismiss, later changed to a

motion for summary judgment, claiming that respondents

had stated no cause of action as a matter of law. (App. 228,

244.) Petitioner also filed an affidavit describing conditions

of widespread inefficiency and confusion that he found to

exist in the Secretary of State’s Office when he replaced

Paul Powell. (App. 233-45, 253.)

In opposition to the motion for summary judgment, re-

spondents filed 94 affidavits of employees discharged by

petitioner. (App. 263-454.) The affidavits stated in sub-

stantially identical language that affiants’ job performances

had been satisfactory. Only five of the 94 swore that they

had been asked to change their affiliation to the Republican

Party. (App. 313-14, 396-97, 408-10, 437, 453-54.)

The District Court entered summary judgment dismissing

the complaint, supported by Findings of Fact and Conclu-

sions of Law. (Appendix ‘‘B’’ infra.) The Court held that

non-civil service employees serve at the will of their em-

ployer and that their summary discharge is not actionable

under the First and Fourteenth Amendments as a matter

of law. (Appendix ‘‘B”’ infra, p. B5.)*

3. Additionally, the District Court made the findings that:

“‘(a) When Mr. Lewis assumed his post as Secretary of

State, he caused a survey or study to be made of the manner

in which the Office was being run; he found widespread con-

ditions of inefficiency, laxity and confusion prevailing in

many divisions and sections of the Office.

**(b) As a result, Mr. Lewis believed in good faith that it

was vitally necessary, in the interest of improving the effi-

ciency of the Office and protecting the interest of the public,

to make immediate and large-scale changes in the manuer in

which the Office was being operated and in the ranks of

personnel that were then employed.

“‘(e) In the staffing of the Secretary of State’s Office, Mr.

Lewis has not pursued a plan of recruiting an army of per-

sonnel to perpetuate himself in office either as Secretary of

State or in any other elected post or position.’’ (Appendix

“B”’ wnfra, pp. B3-4.)

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‘On appeal the Seventh Circuit reversed in a three-way

split; each of the Judges on the panel filed a Separate

opinion. (Appendix ‘‘A’’, infra.) Judge Stevens concluded

that the First Amendment prohibits discharge of non-ciyil

service employees because of their political party affilis.

tions; he remanded the cause to permit respondents to

prove that they were in fact discharged solely because of

their refusal to change political party allegiance,

Judge Campbell concurred in the result, but noted that

the decision is in direct conflict with the holding of the

Second Circuit in Alomar v. Dwyer, 447 F. 2d 482 (1971),

cert. denied, 404 U. S. 1020 (1972), with the Pennsylvania

Supreme Court’s decision in American Federation of State,

County and Municipal Employees, AFL-CIO vy. Shapp, 280

A. 2d 375 (1971), and with the decision of the Kighth

Circuit in Norton v. Blaylock, 409 F. 2a 772 (1969). Judge

Campbell also expressed grave concern over *‘the impact

of today’s decision in thrusting the federal courts into

the administration and daily operations of state and local

governments.’’ (Appendix ‘‘A”’ infra, p. A29.)

Judge Kiley dissented; he concluded that the Second Cir.

cuit’s decision in Alomar v. Dwyer, supra, was correct and

that the District Court should be affirmed.

Petitioner now seeks certiorari.

PE IGT MES IT ONT LENIN MEE IN I: NEL SS OUR BINNS EE: ——

REASONS FOR GRANTING THE WRIT.

The decision below is an abrupt and complete departure

from the long established principle that non-civil service

government employment is terminable at the will of the

employer. As this Court held in Cafeteria and Restaurant

Workers Union, Local 473, AFL-C10 v. McElroy, 367 U.S.

886, 896 (1961), ‘‘It has become a settled principle that

governmen. employment, in the absence of legislation, can

be revoked at the will of the appointing officer.’* The

Seventh Cireuit’s holding also is in direct conflict with de-

cisions of ut least three other Circuits and a State Supreme

Court. The conflict involves a recurring federal issue of

far-reaching public importance and plainly warrants

prompt resolution by this Court.

a

THE SEVENTH CIRCUIT’S HOLDING IS IN DIRECT CON-

FLICT WITH OTHER CIRCUIT AND STATE COURT

DECISIONS.

As Judge Campbell candidly recognized in his concurring

opinion below:

‘‘TI]t cannot be doubted that our decision stands in

sharp and irreconcilable conflict with the decision of

the Second Circuit in Alomar v. Dwyer, 447 F. 2d 482

(1971), and the decision of the Pennsylvania Supreme

Court in American Federation of State, County and

Municipal Employees, AFL-CIO v. Shapp, 280 A. 2d

375 (1971).’’ (Appendix ‘‘A’’ infra, p. A27.)

4. Other decisions so holding are, c.g., Keim v. United States,

177 U. S. 290, 293-94 (1900) (‘‘In the absence of specific provision

to the contrary, the power of removal from office is incident to the

power of appointment.’’) ; Taylor and Marshall v. Beckham (No.

1), 178 U. S. 548, 575-78 (1900) ; Parsons v. United States, 167

U. S. 324, 331-34 (1897) ; Crenshaw v. United States, 134 U. S.

99, 108 (1890).

ce yi Dae

In Alomar v. Dwyer, 447 F. 2d 482 (2d Cir. 1971), cert.

denied, 404 U. S. 1020 ( 1972), plaintiff was a social worke;

for the City of Rochester, New York; she was di

from her job without notice or hearing because she refused

to change from the Democratic to the Republican Party!

Exactly as in the instant case, the plaintiff claimed that

her discharge violated her First Amendment right of “‘froe

political association.’”” The District Court dismissed the

suit and the Second Circuit Court of Appeals affirmed per

curiam. The Court of Appeals held:

“If and when additional [government] positions are

to be subject to civil service protection is a matter for

action by the appropriate municipal and state authori.

ties and not by a federal court.’ (447 F. 2d at 483-84.)

This Court denied certiorari in Alomar without dissent

on January 10, 1972. (404 U.S. 1020.) The Seventh Cirenit

in the instant case expressly rejected the holding of Alomar

and of course reached an opposite result. A clearer and

more direct clash between Circuits could not be envisaged.

So also, the decision below is in total conflict with the

Pennsylvania Supreme Court’s holding in American Fed.

eration of State, County & Municipal Employees, AFL-C10

Shapp, 280 A. 2d 375 (1971). The plaintiffs in Shapp were

Republican non-civil service employees of the state who

refused to change their political party loyalty when a

Democratic administration came into power. In holding

that the dismissals did not violate the First Amendment,

the Court declared:

“*. . . We are compelled to hold that the Governor of

Pennsylvania has the power and authority to hire and

fire at will any and all employees who are not constitn-

5. As the Court of Appeals’ opinion more piquantly put it,

= new Republican broom which swept into the Rochester City

Hall in the spring of 1970 cleaned Democrat Daisy Alomar out.”

447 F. 2d at 482.

—s. ES my .

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7

tionally or statutorily protected—irrespective of their

ability, their polities or their political connections.

Those who, figuratively speaking, live by the political

sword must be prepared to die by the political sword.’’

(280 A. 2d at 378.)

The Seventh Circuit specifically rejected and refused to

follow the Shapp decision, as it did Alomar.

The Seventh Circuit’s holding is also in direct collision

sith decisions of the Eighth Circuit and the District of

Columbia Cireuit. In Norton v. Blaylock, 409 F. 2d 772

(1969), the Eighth Circuit affirmed the holding of the Dis-

trict Court that the dismissal of a state department of

welfare employee for political party reasons was not un-

constitutional :

«.. [T]he 14th Amendment to the Constitution has

not yet been extended so far as to insure job security,

as such, to public employees. Aside from considera-

tions of race, religion or constitutionally protected

conduct, . . . a public employee still assumes the risk,

as far as the Constitution is concerned, of being dis-

charged for personal or political reasons.’’ (285 F.

Supp. 659, 662-63.)

Likewise, in Bailey v. Richardson, 182 F. 2d 46 (D. C. Cir.),

aff'd by an equally divided Court, 341 U. 8. 918 (1950), the

Court held in sustaining the dismissal of a government em-

ployee under an Executive Order of the President:

«_. [T]he plain hard fact is that so far as the Consti-

tution is concerned there is no prohibition against the

dismissal of government employees because of their

political beliefs, activities or affiliation. That docu-

ment, standing alone, does not prevent Republican

Presidents from dismissing Democrats or Democratic

Presidents from dismissing Republicans. From the

beginning, such has been the practice, with variations

in scope.’’ (182 F. 2d at 59.)

In sum, the law of the Seventh Circuit is in direct con-

fict with that of the Second, Eighth and District of Colum-

DOE PO SE ELI OTE Cee

ine

bia Circuits and the State of Pennsylvania. Only this Cour;

can resolve the conflict. Until it does, as Judge Campbey

observed in his concurring opinion below, ‘‘it can reason,

ably be expected that the conflict and attendant confusion

will grow and multiply as other courts are called upon jp

consider the same issue.’’ (Appendix ‘‘A”’ infra, p. A%)

Judge Campbell’s statement has proved prophetic. The

Seventh Circuit itself now has before it another appeal

involving the same issue, Burns v. Elrod, Docket No

71-1285 and 72-1541; the Court has stayed all Proceedings in

that appeal pending this Court’s decision on the instant

petition for certiorari. In Burns, the District Court (per

Judge William J. Bauer) relied upon the Second Cireuit’s

holding in Alomar v. Dwyer, supra, and dismissed a com.

plaint alleging that the newly elected Democratic Sheriff

of Cook County violated the First Amendment by firing

Republican employees who refused to become Democrats.

Burns v. Elrod, F. Supp... (N. D. IL, No. 71 607).

The plaintiffs appealed and on October 18, 1972, the

Seventh Circuit, per Chief Judge Swygert and Judges Kiley

and Stevens, entered an Order staying all proceedings

“pending an order by the Supreme Court accepting or re-

jecting . . . John W. Lewis’ petition for a writ of certiorari

[in Illinois State Employees Union et al. v. Lewis].’*

6. A certified copy of the Seventh Cirenit’s order in Burns

has been lodzed in the Clerk's Office.

Another recent District Court decision in the Seventh Cireuit in

conflict with the holding below is Shakman v. Democratic ;

zation of Cook County, ... F. Supp. .... (N. D. Tl. Ne.

69 C 2145, July 28, 1972). Judge Abraham L. Marovitz there held

that ‘‘politieal considerations in public employment are only for-

bidden where those considerations affect voter-candidate-taxpayer

rights and in all other respects patronage employees may be hired

or fired based on political affiliation.” (Slip Op. p. 20.)

COPY BOUND TO

IL

THE DECISION BELOW MISAPPREHENDS AND CON-

FLICTS WITH THE DECISIONS OF THIS COURT.

The sharp disagreement among the judges below we be-

lieve clearly accentuates the necessity for review by this

Vourt. Each of the three judges on thie Court of Appeals

arrived at a different interpretation of this Court’s de-

cisions on the subject of government employmen icu-

larly Board of Regents v. Roth, 408 U. 8. 564 (1972), and

Perry v. Sinderman, 408 U. 8. 593 (1972).

Judge Stevens believed that footnote 9 in the majority

opinion in Roth effected the ‘‘demise"’ of Bailey v. Richard-

son and Alomar v. Dwyer, supra. Judge Campbell con-

curred, albeit most reluctantly, in the result reached by

Judge Stevens, because he felt that such result was

“dictated by the sweeping holding”’ of Perry v. Sinderman.

Judge Kiley im dissent believed that neither Roth nor

Sinderman supported the majority’s decision, that Alomar

and Bailey were not overruled by the Roth footnote and

should be followed. In addition, three District Court judges

in the Seventh Cireuit are in disagreement with Judges

Stevens and Campbell and have followed the holding of the

Second Circuit in Alomar (Judge Poos in the instant case,

Jodge Bauer in the Burns case, and Judge Marovitz in

the Shakman case, all cited at pp. 8-9, supra).

We submit that Judge Kiley was correct in his belief

that neither Roth nor Sinderman compels the majority’s

holding. Roth held only that a non-tenured state college

teacher was not entitled to notice and hearing prior to

non-renewal of his teaching contract; his interest in re-

employment was held not to constitute ‘‘liberty’’ or “‘prop-

erty’? under the Fourteenth Amendment. 408 U. S. 579.

The footnote that Judge Stevens relied on (note 9 at p.

571) rejects the statement in Bailey that public employ-

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a ————————————— CCC SC t—“‘ _ —_——

10

ment is a ‘‘privilege’’ and not a ‘‘right,’’ but the footnote

clearly does not overrule either Bailey’s or Alomar’s hold.

ing that non-civil service employees may be discharged for

partisan political reasons.

Sinderman also involved a state college teacher whose

contract was not renewed; it appeared without dispute

that the nonrenewal was based on the teacher’s prior testi.

mony and public statements criticizing the Board of Re.

gents. As Judge Campbell observed below, the case js

distinguishable because it involved the ‘‘special and delicate

area of ‘academic freedom’ ’’ (Appendix ‘‘A”’ infra, p.

A26)." There is certainly no suggestion in Sinderman (or

Roth) that Alomar and Bailey should be considered over.

ruled. Indeed, this Court denied certiorari in Alomar only

six months prior to the decision in Sinderman (404 U. §,

1020) ; certiorari in fact had been granted in Sinderman

(403 U. S. 917) at the time the petition for certiorari was

filed in Alomar, and the Alomar petition specifically re.

quested that it be granted and heard together with Sinder.

man. (Alomar v. Dwyer, Petition for Writ of Certiorari,

p. 1, No. 71-568.) We cannot believe this Court intended

to overrule or discredit the holding in Alomar by mere

silence.

In sum, we respectfully submit that certiorari should be

granted to resolve the conflict among circuits and the con-

flict within the Seventh Circuit itself. We believe that non-

civil service employment is terminable ‘‘at the will of the

appointing officer,’’ Cafeteria and Restaurant Workers

Union, Local 473, AFL-CIO v. McElroy, 367 U. 8. 886, 896

(1961), and that this principle necessarily and properly

carries with it the power to employ and discharge non-civil

service workers on a political party basis. We submit that

review by this Court is also critically warranted because of

the manifest public importance and far-reaching impact of

7. See Pickering v. Board of Education, 391 U. S. 563 (1968);

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

PBN —

COPY BOUND TC

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the holding below. As Judge Campbell frankly recognized

in his concurring opinion:

“The conflicting and confused state of the law is

troubling enough, but I am even more concerned over

the impact of today’s decision in thrusting the federal

courts into the administration and daily operations of

state and local governments. It seems to me that the

inevitable effect will be to convert the federal courts

into ‘super civil service commissions’ for all state and

jocal government employees not covered by state or

local civil service laws. Any and all such employees

who are discharged can state an actionable claim in the

federal district court by simply alleging (as plaintiffs

have done here) that the discharge was caused by

political party affiliations or activities. The federal

courts will then be obliged to conduct full trials on the

merits to determine whether the claims are factually

well founded, and the resulting decisions will of course

be appealable.’’ (Appendix ‘‘A’’ infra, p. A29.)

CONCLUSION.

For the foregoing reasons, we respectfully submit that

the petition for a writ of certiorari should be granted.

Respectfully submitted,

Don H. Revsen,

Lawrence GUNNELS,

Sreven P. Hanpwer,

130 East Randolph Drive,

Chicago, Illinois 60601,

Attorneys for Petitioner.

Of Counsel :

Krrxianp & Es,

Chicago, Illinois.

December 4, 1972.

Tipe: eee

» CLOSE IN CENTER

“%

Al

APPENDIX ‘‘A’

IN THE

Unitep States Court or

No. 71-1619

Iuunois State Empitoyees Union,

Councr, 34, American FEpERA-

TION OF State, CouNTY AND

MvunicrpaL Emptoyess, AFL-CIO,

an unincorporated labor organ-

ization, et al.,

vs.

Joun W. Lewis, individually and

as Secretary of State of the

State of Illinois,

Defendant-Appellee. |

BELL,” District Judge.

Plaintiffs-Appellants, f

APPEALS

for the Seventh Circuit

SepremBeR TERM, 1971 January Session, 1972

Appeal from the

United States Dis-

trict Court for the

Southern District

of Illinois, South-

ern Division.

No. 4743

Omer Poos,

Judge

ArcveD Fresruary 29, 1972 — Deciwep Sepremser 18, 1972

Before Kirtey and Stevens, Circuit Judges, and Camp-

Stevens, Circuit Judge. The question presented is

whether a public employee may be discharged for failing

*Senior District Judge William J. Campbell of the Northern

District of Illinois is sitting by designation.

—

A2

to support the partisan political activities of his immedj.

ate superior. Defendant contends as a matter of fact that

plaintiffs were not discharged for any such reason and as

a matter of law that such a reason is sufficient unti]

political tradition—at least the patronage aspects of the

“‘spoils’’ system—is superseded by appropriate legislation,

We conclude that neither defendant’s factual nor his legal

defense has been established in this case. We start with

the facts.

1.

The individual plaintiffs were employed by the late

Paul Powell in the Illinois Secretary of State’s office; al]

of them held non-civil service positions as building em.

ployees, clerical workers, license examiners and the like,

After the defendant John W. Lewis was appointed by

Governor Ogilvie to fill the unexpired term of Paul Powell,

the plaintiffs received letters terminating their employ-

ment; the letters stated no reasons for the termination,

The plaintiffs later filed this action claiming that they

were discharged because of their political affiliations, i,,

because they refused to become Republicans or to support

the Republican Party and that a hearing would so show;

plaintiffs claim that such discharge violated their rights

under the First and Fourteenth Amendments to the U.S.

Constitution.! The complaint predicated federal jurisdic.

1. Relying on this circuit’s decisions in Roth vy. Board of Re-

gents, 446 F. 2d 806 (1971), and Shirck v. Thomas, 447 F. 2d

1025 (1971), plaintiffs also claimed that they could not be dis-

charged without first being afforded the procedural due process

rights of prompt notice and hearing. After oral argument we

entered a hold order because the Supreme Court had granted

certiorari in Roth. The Supreme Court reversed this circuit in

Roth, Board of Regents v. Roth, a ek since ,40 U.S. L. W.

5079 (June 29, 1972), and vacated our judgment in Shirck,

Thomas v. Shirck, ....... _ ee , 41 U. S. L. W. 3003 (June 29,

1972). The Court held that a non-tenured teacher had no Four-

teenth Amendment ‘“‘liberty’’ or “*property’’ right to continued

ey

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A3

tion upon the Civil Rights Act of 1871, 42 U.S. C. § 1983,

and sought relief reinstating plaintiffs to their jobs,

awarding them back pay and enjoining future discharges

of other employees such as the plaintiffs.

Defendant filed a motion for summary judgment. The

motion was supported by defendant’s affidavit describing

in detail conditions of widespread inefficiency and confu-

sion which he found to exist in the Secretary of State’s

Office when he was appointed.? Defendant’s affidavit stated

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employment and was therefore not entitled to a pretermination

notice and hearing. The Court said that to have a ‘‘property”’ 2

interest in a benefit a person ‘‘must have more than an abstract i

need or desire for it. He must have more than a unilateral

expectation of it. He must, instead, have a legitimate claim of

entitlement to it.’* ........ -_ , 40 U. S. L. W. at 5082.

One who takes a ‘‘patronage”’ job may not even have an expec-

tation of keeping it when the appointing officer is replaced, let

alone a ‘legitimate claim of entitlement’’ to such a job. Roth

did indicate that different considerations might apply if a state,

in dismissing or refusing to rehire an employee, made charges

tending to damage his ‘‘good name, reputation, honor or integ-

rity.’ We assume that the loss of a patronage job would in no

sense reflect adversely on the discharged employee’s reputation.

And here, of course, no charges of misconduct were made—the

discharges were made without any reasons being given. It is

true that the reasons given by the Secretary in his affidavit might

be construed as charging mismanagement, inefficiency and perhaps

misconduct. However, the affidavit speaks in general terms and

does not accuse any particular individual of dishonesty or lack of

integrity. Moreover, charges made only in an effort to defend a

lawsuit cannot be used to require a ‘‘notice and hearing’’ at a

time before such charges were made. The hearing on any such

charges is afforded by the judicial proceeding which provoked

them. Thus, the Supreme Court’s opinion in Roth requires that

we reject the ‘‘notice and hearing’’ aspect of plaintiff’s claim.

2. Specifie examples of such conditions cited in the affidavit

were :

‘“(a) There was no effective internal auditing system or

procedure in effect to maintain efficient accounting, financial

record-keeping or fiscal control.

‘“‘(b) There was no master or central filing system to as-

sure safe custody, control or awareness of contracts, leases

and other important documents.

‘““(e) There were no effective controls over purchasing

MAAR LN DEH SRD AE OC IE RIN

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that ‘‘the efficiency of the office was at such a low ebb that

in order to protect the public and to prevent a total break.

down of the Secretary of State’s Office, it was vitally and

immediately necessary to make large scale changes in the

manner in which the office was being run and in the ranks

of personnel that were then employed.’’

In opposing defendant’s motion for summary judgment,

plaintiffs sought to develop evidence which would dispute

defendant’s factual theory. They propounded written jp.

terrogatories to the defendant® and filed 94 affidavits of

discharged employees. Each affiant described his duties

and set forth facts tending to indicate that his job per-

formance was satisfactory and that his discharge had beex

politically motivated.

Five of the affiants said that they had been contacted

and requested to change their affiliations to the Republi-

can Party. Thus, as an example, the handwritten affidavit

procedures of the office and many purchases were being made

by the office in a shockingly loose manner. There was no limi-

tation of the authority of employees to sign orders for and

receive services, supplies, transportation or repairs. As a

consequence there was no effective control of these matters

and it was impossible to determine whether the services and

supplies so ordered and received were useful or necessary in

the operation of the department.

““(d) The section of the office in charge of auditing of

truck license plate reciprocity and pro-rating was grossly mis-

managed in that the laws were not being enforced and truck

license fees were not being collected impartially or diligently.

““(e) Much mail addressed to the office by members of

the public had been unanswered and ignored.

““(f) Many of the public’s applications for vehicle licenses

had been lost or misplaced.

““(g) Vendors were selling their products in State build-

ings without written contracts,’’

3. The interrogatories sought the names and addresses of all

persons hired or discharged by defendant after being sworn in as

Secretary of State and the job titles and locations of the employ-

ment of all employees whom he had discharged.

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of the plaintiff William Perry states that he was employed

as a janitor in the Illinois State Building from October

1, 1965, to March 5, 1971,* and was told by his supervisor,

Mr. Reed, that he would be able to keep his job if he

joimed the Republican Party. Affiant Betty Jean Sikes

swore that she ‘‘was approached by Mr. W. Estes of the

Republican Party—who filled out a paper—and said I

would be retained in my present position but I would

have to vote Republican.’ Robert D. Wise, a driver’s

license examiner who conducted road tests in Joliet, Illi-

nois, swore that he ‘‘was approached by Mr. Hall, of the

Republican Party, and he told me I would have a better

chance of staying if I would change over to the Republican

Party or Republican sponsorship. This was told to all

members of the station at 4:30 P.M., at a meeting con-

ducted by Mr. Hall, who said that we would be replaced

as soon as they acquired new employees (Republicans).’”*

The district court entered summary judgment for de-

fendants and also entered ‘‘findings of fact’’ and conclu-

sions of law. In substance, the court found that defend-

ant’s version of the facts was correct. Implicitly the

court held that plaintiffs’ affidavits were insufficient as

a matter of law and that the answers to plaintiff’s inter-

rogatories (which had not yet been filed) could not lead

to the discovery of relevant evidence creating a material

issue of fact.

It is, of course, well settled that a district court may

not resolve issues of fact on a motion for summary judg-

4. ‘*My job was to bail papper & keek [sic] the dock clean .. .

[M]y supervisor told me I was doing a good job—February 4,

1971 .. . I was a registered member of the Democratic Party in

Madison County. I was approached by my supervisor, Mr. Reed,

that if I joined the Republic Party, I would be able to keep my

job. February 4, 1971. I was terminated from my job on the 5

day of March, 1971. They gave me no reason why I was being let

out.”” A. 396-397.

5. A. 409.

6. A. 454.

factual basis for the motion.’ It is especially important

to observe these procedural requirements when evidence,

of motivation is of critical importance.” To the extent,

7. Sartor v. Arkansas Natural Gas Corp., 321 U. §. 620, 627.

they had been discharged for ““political’’ reasons. Since we re.

ject that theory, summary judgment was inappropriate.

““Furthermore, it should be fundamental that a defendant

who has failed to answer relevant and timely interrogatories

is, at least normally, in no position to obtain summary judg-

ment.’’ Id. at 109.

In ordering a remand to afford the losing party on summary judg.

ment an opportunity for discovery on a material issue, the District

of Columbia Circuit has said :

“This holding in no way supports the view that a mere re.

quest for answers to interrogatories will operate to bar the

trial court from acting on a motion for summary judgment.

It is incumbent upon the party seeking answers to demon-

strate that his inquiry is directed toward establishing the

“material facts’ and that upon receipt of those answers he will

be armed to defend against that motion. This holding does

not support harassment tactics or requests for information

that is equally accessible to both parties. We simply decide

this case on its facts as applied to our reading of Rule

56(¢)."’ Washington v. Cameron, 411 F. 2d 705, 711 (1969).

Similarly here, we simply decide that these interrogatories should

have been answered before the court ruled on the summary judg-

ment motion.

9. “We look at the record on summary judgment in the light

most favorable to Poller, the party opposing the motion, and

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therefore, that the district court’s decision is predicated

on a rejection of plaintiffs’ version of the facts, it plainly

cannot stand.

We, of course, do not decide that plaintiffs’ version of

the facts is the correct one. But since there has been no

trial, in order to test the legal sufficiency of their claims,

we must assume that they can prove their case. Thus, our

analysis of the law assumes that plaintiffs were perform-

ing their jobs competently, that they have no responsibil-

ity for determining policy, that they were discharged

simply beeause they are Democrats, and that, in at least

come instanees, they were offered continued employment

if they would actively support the Republican Party.

The legal issue which is therefore presented is whether

a non-policy making employee, such as a janitor or a

driver’s license examiner, may be discharged for refusing

to transfer his political allegiance from one political party

to another.

IL

There are three objections to our consideration of this

‘ssue which should first be frankly identified. It is urged

(1) that the issue is ‘‘political’’ and therefore unfit for

judicial determination ; (2) that federal judges may not

impose a civil service system on the State of Illinois; and

(3) that a tradition of almost 200 years of uninterrupted

acceptance of the ‘‘patronage system’’ may not be over-

come by judicial fiat.

1. This controversy between the plaintiffs and their

conclude here that it should not have been granted. We be-

lieve that summary procedures should be used sparingly in

complex antitrust litigation where motive and intent play

leading roles, the proof is largely in the hands of the alleged

conspirators, and hostile witnesses thicken the plot.”’ Poller

vy. Columbia Broadcasting System, Inc., 368 U. 8. 464, 473.

See also White Motor Co. v. United States, 372 U. S. 253, 259;

Williams v. Allen, 439 F. 2d 1398, 1401 (5th Cir. 1971).

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former employer does not present the kind of “politica!

question’’ that is nonjusticiable.”*

By application of the ‘‘political question’’ doctrine, the

Supreme Court has decided that certain kinds of issue;

are unfit for federal judicial determination. In situations

in which the Court recognized the paramount interest in

attributing finality to determinations by the political de.

partments of the federal government—as in matters deal.

ing with war, foreign affairs, the preservation of Indiap

tribal organizations, or rival claims to recognition as the

lawful government of a State—the Court has described the

issue as a ‘‘political question’’ and therefore nonjusticia.

ble. In those cases the Court has also stressed the

absence of judicially manageable standards for resolving

the dispute or fashioning appropriate relief."'

It is well settled that our duty to accord appropriate

respect to a state’s sovereignty does not require us to

accord finality to a decision to dismiss an employee for an

impermissible reason, or a Ss of discrimination

369 U. ©. 186, 208-237, 280-301, 330.

11. Summarizing its review of the principal political question

eases in Baker v. Carr, the Court stated -

“*We come, finally, to the ultimate inquiry whether our prece-

dents as to what constitutes a nonjusticiable ‘political ques

tion’ bring the ease before us under the umbrella of that do-.

ine: taan fp is catia alin ome

Constitution. We have no question decided, or t

by a political branch of government coequal

Nor do we risk embarrassment of our guverument sbread,

grave disturbance at home if we take i

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against members of a particular race, religion, or political

faith in the award or withholding of public benefits. Nor

‘« there any lack of judicially manageable standards in

cases of this kind. The motivation for the dismissal of

tate employees was the critical issue in a wide range of

cases which the Supreme Court has routinely treated as

justiciable. The underlying rationale for the ** political

question’” doctrine plainly has no application to this case.

hundred years, .. . .”” Nixon v. Herndon, 273 U. S. 536,

540. We are satisfied that the case before us is not within

“that class of political controversy which, by the nature

of its subject, is unfit for federal judicial action.’’ Baker

«. Carr, 369 U. S. at 330 (Mr. Justice Frankfurter,

dissenting).

2. Neither this court nor any other may impose a civil

service system upon the State of Mlinois. The General

Assembly has provided an elaborate system regulating

the appointment to specified positions solely on the basis

of merit and fitness, the grounds for termination of such

employment, and the procedures which must be followed

in connection with hiring, firing, promotion, and retire-

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ment."* A federal court has no power to establish any

such employment code.

However, recognition of plaintiffs’ claims will not give

every public employee civil service tenure and Will not

require the state to follow any set procedure or to assume

the burden of explaining or proving the grounds for every

termination. It is the former employee who has the bur.

den of proving that his discharge was motivated by an

impermissible consideration. It is true, of course, that a

prima facie case may impose a burden of explanation on

the State. But the burden of proof will remain with the

plaintiff employee and we must assume that the trier of

fact will be able to differentiate between those discharges

which are politically motivated and those which are not,

There is a clear distinction between the grant of tenure

to an employee—a right which cannot be conferred by

judicial fiat—and the prohibition of a discharge for a par-

ticular impermissible reason. The Supreme Court has

plainly identified that distinction on many occasions, most

recently in Perry v. Sindermann, .... U.S. __ , 40 U.S.

L. W. 5087 (June 29, 1972).

Unlike a civil service system, the Fourteenth Amend-

ment to the Constitution does not provide job security, as

such, to public employees. If, however, a discharge is

motivated by considerations of race, religion, or punish-

ment of constitutionally protected conduct, it is well

settled that the State’s action is subject to federal judi-

cial review."* There is no merit to the argument that

12. See, ¢.9., the Tlinois Personnel Code, 127 Smith-Hurd TH.

Stat. Anno. § 63b101-§ 63b119.

13. In Board of Regents v. Roth, discussed in note 1, supra,

the Supreme Court concluded that a non tenured teacher had no

“‘liberty’’ or ‘‘property’’ interest in his job and was therefore not

entitled to a ‘‘due process’’ hearing before being denied a con-

tract renewal. But on the same day the Court recognized that,

completely independent of a protected interest in the job, a

teacher had a First Amendment right—an aspect of ‘‘liberty”’ in

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recognition of plaintiffs’ constitutional claim would be

tantamount to foisting a civil service code upon the State.

3. Finally, our answer to the constitutional question is

not foreclosed by the fact that the ‘‘spoils system has been

entrenched in American history for almost two hundred

years.”” Alomar v. Dwyer, 447 F. 2d 482, 483 (2d Cir.

1971), cert. denied, 404 U. S. 1020.4 For most of that

period it was assumed, without serious question or debate,

that since a public employee has no constitutional right to

his job, there can be no valid constitutional objection to

his summary removal. See Bailey v. Richardson, 182 F. 2d

46, 59 (D. C. Cir. 1950), affirmed per curiam by an equally

divided Court, 341 U. S. 918; Adler v. Board of Education,

349 U. S. 485. But as Mr. Justice Marshall so forcefully

stated in 1965 when he was a circuit judge, ‘‘the theory

that public employment which may be denied altogether

may be subjected to any conditions, regardless of how un-

reasonable, has been uniformly rejected.” Keyishian v.

Board of Regents, 345 F. 2d 236, 239 (2d Cir. 1965)."° The

development of constitutional law subsequent to the Su-

preme Court’s unequivocal repudiation of the line of cases

the Fourteenth Amendment—which could not be abridged by the

imposition of a penalty of job forfeiture for its exercise. Perry

y. Sindermann, .......- U.S. ........ 40 0. S. L. W. 5087 (June 29,

1972).

14. It may be correct that the patronage system has been fol-

lowed for ‘‘almost two hundred years’’ and therefore was in

existence when the Constitution was adopted. However. the no-

toriety of the practice in the administration of Andrew Jackson

in 1828 implies that it was not prevalent therefore; we are not

aware of any discussion of the practice during the drafting of the

Constitution or the First Amendment. In any event, if the age of

a pernicious practice were a sufficient reason for its continued ac-

ceptance, the constitutional attack on racial discrimination would,

of course, have been doomed to failure. See Cousins v. City Coun-

cil of the City of Chicago, ........ FP. 2d -.....-. (7th Cir. May 25, 1972.

No. 71-1077) slip opinion at p. 35, n. 18 (dissenting opinion).

15. Quoted with approval in Keyishian v. Board of Regents,

385 U. S. 589, 605-606.

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ending with Bailey v. Richardson and Adler v. Board of

Education is more relevant than the preceding doctrine

which is now ‘‘universally rejected.’™*

We therefore abjure argument founded only on politi.

cal tradition in the State of Illinois or on notions of poliey

which may or may not lead to the extension of the civyi

service system; such arguments are properly the concern

of the General Assembly of the State of Illinois. Our cop.

cern is with the First Amendment rights of a citizen

16. Defendant relies heavily on the holding of the Court of

Appeals for the District of Columbia in Bailey v. Richardson:

“*It is next said that appellant's dismissal impinged upon

the rights of free speech and assembly protected by the First

Amendment, since the dismissal was coiiienl upon alleged

political activity. * * * But the plain hard fact is that so

far as the Constitution is concerned there is no prohibition

against the dismissal of Government employees because of

their political beliefs, activities or affiliations.’’ 182 F. 2d

46, 59.

The invalidity of the premise underlying that holding was de-

scribed by the Supreme Court only a few weeks ago

“‘In a leading case decided many years ago, the Court of

Appeals for the District of Columbia Cireuit held that public

employment in general was a ‘privilege,’ not a ‘right,’ and

that procedural due process guarantees therefore were inap-

plicable. Bailey v. "Ur 182 F. 2d 46, aff’d by an

equally divided Court. 341 U.S. 918. The basis of this hold-

ing has been thoroughly unde a in the ensuing years.

For, as Mr. Justice BLackmtn wrote for the Court only last

year, ‘this Court now has rejected the concept that constitu-

tional rights turn upon whether a governmental benefit is

characterized as a ‘‘right’’ or as a “‘privilege.”’’ Graham v.

Richardson, 403 U. S. 365, 374. See, e.g., Morrissey v.

ee CU. & . ; Bell v. Burson, 402 U. S. 535,

539 ; Goldberg v. Kelly, 397 v. Ss. 254, 263 ; Shapiro v. Thomp-

son, "394. S. 618, 627, n. 6; Pickering v. Board of Education,

391 U. S. 563, 568; Sherbert v. Verner, 374 U. S. 398, 404.”

Board of Regents v. Roth, —.... C8 .. @0U.8. L W.

5079, 5081 n. 9.

The significance of the demise of Bailey v. Richardson is espe-

cially noteworthy in view of the Second Circuit's reliance, in its

per curiam opinion in Alomar v. Dwyer, 447 F. 2d 482. 483 (2nd

Cir. 1971), cert. denied, 404 U. S. 1020, on the same language

from the Bailey opinion that defendant has quoted to us.

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named Perry whose sovereign offered him a choice be-

tween profession allegiance to the Republican Party or

surrendering his position as a janitor in the State House.”

If he can prove that his employment was terminated be-

cause he made the wrong choice, has any right protected A

by the First Amendment been abridged? We think the

Supreme Court has answered this question for us in rather

plain language.

A ar a

Til.

In 1949 a closely divided Supreme Court upheld a stat-

ute prohibiting federal civil service employees from tak-

ing an active part in partisan political activities. United

Publc Workers v. Mitchell, 330 U. S. 75. The dissenting

Justices felt that such an abridgment of First Amend-

ment rights could not be justified.* The majority, how-

pan AE

17. For purposes of decision we accept defendant ’s argument

that Shakman V. Democratic Organization of Cook County, 435

F. 2d 267 (7th Cir. 1970), cert. denied, 402 1°. S. 909, is not con-

trolling because the plaintiffs’ allegations do not indicate—and

the defendant’s affidavit denies—that defendant’s employment

practices were SO widespread as to disadvantage candidates and

voters who attempted to use the electoral process to change the

direction of government. Id. at 270. The holding of Shakman is,

however, in complete accord with our decision here.

18. In dissent, Mr. Justice Black stated :

“To punish millions of employees and to deprive the nation

of their contribution to publie affairs, in order to remove

temptation from a proportionately small number of public

officials, seems at the least to be a novel method of suppressing

what is thought to be an evil practice.

‘Our political system, different from many others, rests on

the foundation of a belief in rule by the people—not some,

but all the people. Education has been fostered better to fit

people for self-expression and good citizenship. In a country

whose people elect their leaders and decide great public issues,

the voice of none should be suppressed—at least such is the

assumption of the First Amendment. That Amendment, un-

less I misunderstand its meaning, includes a command that

the Government must, in order to promote its own interest,

leave the people at liberty to speak their own thoughts about

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ever, concluded that the government’s interests in no}

compromising the quality of public service and in not per.

mitting individual employees to use their public Offices to

advance partisan causes were sufficient to justify the

limitation on their freedom.”

There was no dispute within the Court over the proposi-

tion that the employees’ interests in political action were

protected by the First Amendment. The J ustices’ differ.

ent conclusions stemmed from their different appraisals

of the sufficiency of the justification for the restriction,

That justification—the desirability of political neutrality

in the public service and the avoidance of the use of the

power and prestige of government to favor one party or

the other—would condemn rather than support the alleged

conduct of defendant in this ease. Thus, in dicta, the Court

unequivocally stated that the Legislature could not require

allegiance to a particular political faith as a condition of

public employment:

“‘Appellants urge that federal employees are pro-

tected by the Bill of Rights and that Congress may

not ‘enact a regulation providing that no Republican,

Jew or Negro shall be appointed to federal Office, or

that no federal employee shall attend Mass or take

any active part in missionary work.’ None would

deny such limitations on congressional power but, be-

cause there are some limitations, it does not follow

that a prohibition aganist acting as ward leader or

worker at the polls is invalid.’’ 330 U. S. 75, 100.

In 1952 the Court quoted that dicta in support of its

holding that the State of Oklahoma could not require its

employees to profess their loyalty by denying past asso-

ciation with Communists. Wieman v. Updegraff, 344 U. 8.

government, advocate their own favored governmental causes,

and work for their own political candidates and parties.”

330 U. S. at 114.

19. 330 U. S. at 94-100.

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183, 191-192. That decision did not recognize any special

right to public employment ;* rather, it rested on the im-

ct of the requirement on the citizen’s First Amendment

rights." We think it unlikely that the Supreme Court

would consider these plaintiffs’ mterest in freely associ-

ating with members of the Democratic Party less worthy

of protection than the Oklahoma employees’ interest in

associating with Communists or former Communists.””

In 1961 the Court held that a civilian cook could be

summarily excluded from a naval gun factory. Cafeteria

Workers v. McElroy, 367 U. S. 886. The government’s

90. Referring to a portion of the opinion in Adler v. Board of

Education, 342 U. S. 485, 492, the Court said:

“To draw from this language the facile generalization that

there is no constitutionally protected right to public employ-

ment is to obscure the issue.’’ 344 U.S. at 191.

And on the next page the Court said:

‘We need not pause to consider whether an abstract right to

public employment exists.”’

21, In his coneurring opinion Mr. Justice Black equated in-

eligibility for public employment with punishment. He wrote:

“Test oaths are notorious tools of tyranny. When used to

shackle the mind they are, or at least they should be, unspeak-

ably odious to a free people.

* e * * =

““It seems self-evident that all speech criticizing government

rulers and challenging current beliefs may be dangerous to

the status quo. With full knowledge of this danger the

Framers rested our First Amendment on the premise that the

slightest suppression of thought, speech, press, or publie as-

sembly is still more dangerous. This means that individuals

are guaranteed an undiluted and unequivocal right to express

themselves on questions cf current public interest. It means

that Americans discuss such questions as of right and not on

sufferance of legislatures, courts or any other governmental

agencies.”’ 344 U. S. at 193-194.

22. In United States v. Robel, 389 U.S. 258, the Court again

afforded protection to the First Amendment rights of association

of a member of the Communist Party. The Court unequivocally

reaffirmed the proposition ‘‘that the right of association is specifi-

cally protected by the First Amendment.’’ 389 U. S. at 263.

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interest in maintaining the security of the military insta,

lation outweighed the cook’s interest in working at q

particular location. Again, however, the Court explicitly

assumed that the soverign could not deny employment fo;

the reason that the citizen was a member of a Particular

political party or religious faith—‘‘that she could not have

been kept out because she was a Democrat or

Methodist.’’ 367 U. S. at 898.

In 1968 the Court held that ‘‘a teacher’s exercise of his

right to speak on issues of public importance may not

furnish the basis for his dismissal from public employ.

ment.’’ Pickering v. Board of Education, 391 U. S. 563, 574,

The Court noted that although criminal sanctions “‘haye

a somewhat different impact on the exercise of the right

to freedom of speech from dismissal from employment, it

is apparent that the threat of dismissal from public em.

ployment is nonetheless a potent means of inhibiting

speech.’’ Ibid. The holding in Pickering was a natural

sequel to Mr. Justice Frankfurter’s comment in dissent

in Shelton v. Tucker that a scheme to terminate the em-

poyment of teachers solely because of their membership

in unpopular organizations would run afoul of the Four-

teenth Amendment. 364 U. S. 479, 496.

In 1972 the Court reaffirmed the proposition that a non-

tenured public servant has no constitutional right to pub-

lic employment, but nevertheless may not be dismissed

for exercising his First Amendment rights. Perry vy.

Sindermann, .......... U.S. ...., 40 U. 8. L. W. 5087 (June

29, 1972). The Court’s explanation of its holding is

pertinent here:

“‘For at least a quarter century, this Court has

made clear that even though a person has no ‘right’ to

a valuable governmental benefit and even though the

government may deny him the benefit of any num-

ber of reasons, there are some reasons upon which

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the government may not act. It may not deny a bene-

fit to a person on a basis that infringes his constitu-

tionally protected interests—especially, has interest in

freedom of speech. For if the government could deny

a benefit to a person because of his constitutionally

protected speech or associations, his exercise of those

freedoms would in effect be penalized and inhibited.

This would allow the government to ‘produce a re-

sult which [it] could not command directly.’ Speiser

y. Randall, 357 U. S. 513, 526. Such interference with

constitutional rights is impermissible.

‘‘We have applied this general principle to denials

of tax exemptions, Speiser v. Randall, supra, unem-

ployment benefits, Sherbert v. Verner, 374 U. S. 398,

404-405, and welfare payments, Shapiro v. Thompson,

394 U. S. 618, 627 n. 6; Graham v. Richardson, 403

U. S. 365, 374. But, most often, we have applied the

principle to denials of public employment. United

Public Workers v. Mitchell, 330 U. S. 75, 100; Wieman

v. Updegraff, 344 U. S. 183, 192; Shelton v. Tucker,

364 U. S. 479, 485-486; Torasco v. Watkins, 367 U. S.

488, 495-496 ; Cafeteria Workers v. McElroy, 367 U. S.

886, 894; Cramp v. Board of Public Instruction, 368

U. S. 278, 288; Baggett v. Bullitt, 377 U. S. 360; Elf-

brandt v. Russell, 384 U. S. 17; Keyishian v. Board of

Regents, 385 U. S. 589, 605-606; Whitehill v. Elkins,

389 U. 8. 54; United States v. Robel, 389 U. S. 208;

Pickering v. Board of Education, 391 U. S. 563, 568.

We have applied the principle regardless of the pub-

lie employee’s contractual or other claim to a job.

Compare Pickering v. Board of Education, supra,

with Shelton v. Tucker, supra.

“Thus the respondent’s lack of a contractual or

tenure ‘right’ to re-employment for the 1969-1970 aca-

demic year is immaterial to his free speech claim.

at siete 2 , 40 U. S. L. W. at 5088-5089.

This cireuit has given full effect to this principle. In

Kiiskila v. Nichols, in his opinion for the court sitting

en banc, Chief Judge Swygert explained :

‘‘A gitizen’s right to engage in protected expres-

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sion or debate is substantially unaffected by the fagt

that he is also an employee of the government and, as

a general rule, he cannot be deprived of his employ.

ment merely because he exercises those rights. This

is so because dismissal from government employment,

like criminal sanctions or damages, may inhibit the

propensity of a citizen to exercise his right to free.

dom of speech and association. Pickering v. Board of

Education, supra 391 U.S. at 974, 88 S. Ct. 1731. J

protect society’s interest in uninhibited and robust

debate the first amendment demands that government

be prohibited from inhibiting or suppressing speech

by indirection through discharge of a government em-

ployee when the same objective could not constitu.

tionally be achieved by criminal sanctions or other

direct means. United States v. Robel, [389 U. S. 258]

433 F. 2d 745, 749 (7th Cir. 1970).

And more recently Judge Hastings succinctly stated “‘that

public employment may not be conditioned upon the sur.

render of constitutional rights.’’ Donahue v. Staunton,

7. oe... (7th Cir. July 6, 1972, No. 71-1160) slip opinion

p. 8. See also Hanover Township Federation of Teachers

Local 1954 (AFL-CIO) v. Hanover Community School

Corp., 457 F. 2d 456, 459-460 (7th Cir. 1972).

Accepting the premise, as United Public Workers y,

Mitchell, 330 U. S. 75, holds that state interests may

justify some curtailment of the political activities of public

employes, it seems perfectly clear that the abject and com-

plete surrender of a citizen’s First Amendment rights

could never be justified. No state interest could justify a

requirement that an employee falsely swear allegiance to

an offensive religious or political faith, or a requirement

that he actively work for, or speak out in favor of, a

political cause be deemed obnoxious. The basic rights of

citizenship survive acceptance of public employment.

If the conditions attached to public employment merely

involve some curtailment—as opposed to abject surrender

A19

_of First Amendment rights, interests of the State ‘‘if

strong enough’? may justify the condition.*» As a pro-

cedural matter, the burden of establishing such justifica-

“3. In his opinion in Donahue v. Staunton, Judge Hastings

noted :

“Interests of the State which, if strong enough, the Court

in Pickering felt might lead to a different result in the future

are: (1) maintaining discipline or harmony among co-work-

ers; (2) need for confidentiality ; (3) employee’s position may

be such that his false accusations may be hard to counter

because of the employee’s presumed greater access to the real

facts; (4) statements which impede the employee's proper

performance of this daily duties; (5) statements so without

foundation as to eall into question his competency to perform

the job; and (6) a close and personal working relationship

between the employee and supervisor which called for per-

sonal loyalty and eonfidence.’’ ....... F. 2d at ........ (slip opin-

ion, at p. 9).

Chief Judge Swygert, in dissent stated :

‘Pickering v. Board of Education, 391 U. 8S. 563 (1968),

does not wipe out all curtailment of a public employee’s right

to speak. ‘[I]t cannot be gainsaid that the State has inter-

ests as an employer in regulating the speech of its employees

that differ significantly from those it possesses in connection

with regulation of the speech of the citizenry in general.’

391 U. S. at 568. The Court went on to explain that a bal-

ance of competing interests must be struck. ‘The problem in

any case is to arrive at a balance between the interests of the

... femployee], as a citizen, in commenting upon matters

of publie concern and the interest of the State, as an em-

ployer, in promoting the efficiency of the public services it

performs through its employees.’ Jd. at 568.

“T read Pickering to hold that if the functions of a public

entity are substantially impeded by an employee’s statements

relating to those functions, measures may be taken to regulate

such speech even to the point of terminating employment.

If that reading is correct, then the following view expressed

by the Eighth Circuit in Jenson v. Olson, 353 F. 2d 825 (8th

Cir. 1965), even though predating Pickering, has continuing

vitality: ‘When his... [the employee’s] speech is disrup-

tive of the proper functioning of the public’s business the

privilege of governmental employment may be withdrawn

without it being said that he was denied his freedom of

speech. To hold otherwise would enable governmental em-

ployees to practice the rankest form of insubordination and

safely hide behind the right of free speech.’ ’’ ........ F. 2d at

deni (slip opinion at p. 14).

Se a! ec

> 2 ONG PRA PTET,

A LATS AR ETS ACL LAL LLL ALL LL LLL LLL, LI

tion rests upon the defendant. In view of the importanc

which the Court has consistently attached to the Firg

Amendment rights of the citizenry, that burden is a heavy

one. Without such justification, the foregoing cases dem.

for their discharge. We must therefore consider th:

matter of justification.

IV.

Three separate justifications have been brought to our

attention: (1) plaintiffs themselves are the beneficiaries

of the patronage system and should not be heard to com.

plain of its routine and foreseeable consequences—as the

Supreme Court of Pennsylvania stated, those who “‘live

by the political sword must be prepared to die by the

political sword.’ American Federation of State, County

and Municipal Employees (AFL-CIO) v. Shapp, 230 A. %

375, 378 (1971); (2) political affiliations may be a relevant

and proper qualification for certain positions ; and (3) in all

events, effective administration of departments of govern.

ment requires public, like private, executives to have broad

latitude in appointing, replacing, and discharging person-

nel—any rule that provides the nontenured employee with

an easily alleged cause of action for wrongful discharge

necessarily inhibits that managerial discretion. Each of

these three points is substantial and warrants separate con-

sideration.

1. The first argument is predicated on factual assump-

tions not now a matter of record in this case. In essence,

it is suggested that each discharged employee accepted his

job with knowledge that he would be fired if, and when, the

appointing officer was replaced by a member of the opposite

political party. If so, perhaps each plaintiff has waived any

right to object to the fully anticipated event which has now

come to pass.

But the factual assumption may or may not be valid

———

Dven if judicial notice of such matters were proper, it

would be unreasonable for us to assume that every non-

tenured public servant was employed on such a purely po-

litical basis. In Board of Regents v. Roth, — U. &. —.,

#0 U. S. L. W. 5079 (June 29, 1972), the Supreme Court

refused to accord any greater constitutional protection to

the non-tenured teacher's prospects of future employment

than to such prospects of other public employees. We can-

not properly differentiate between teachers and highway )

maintenance workers, pilots, law clerks, driver’s license ex-

aminers or janitors on the basis of mere judicial assump-

tions about the circumstances attending their respective

employment. The particular factual basis for a waiver de-

fense may vary as between different plaintiffs and different

job classifications, and may, at best, limit the scope of relief

rather than foreclosing the claim altogether.”

The colorful phrasing of the waiver defense by the

Pennsylvania Supreme Court suggests that the right which

may have been waived is a right to continued public employ-

ment. But we have assumed that no such right exists. The

right which plaintiffs seek to vindicate is their constitu-

tional right of association protected by the First Amend-

ment. The United States Supreme Court has repeatedly

indicated that a waiver of constitutional rights will not

lightly be assumed.” Accordingly, until a factual basis for

24. In an entirely different context we have recently noticed

that waiver, unlike the defense of estoppel, may merely foreclose

the recovery of past damages. Continental Coatings Corp. v.

Metco, Tne... FP. 2d... (7th Cir. July 21, 1972, No. 71-1266).

25. It is, of course, well settled that ‘‘ ‘courts indulge every

reasonable presumption against waiver’ of fundamental constitu- ;

tional rights and that we ‘do not presume acquiescence in the loss :

of fundamental rights" A waiver is ordivarily an intentional

relinquishment or abandonment of a known right or privilege.”

Johnson <. Zerbst, 304 VS. 458, 464, quoting from Actna Ins. Co.

v. Kennedy, 301 U. S. 389, 393: Hodges v. Easton, 106 U. 8. 408.

412, and Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301

U.S. 292, 307. See Smith v. United States, 337 U. S. 137, 150 and

a. 11; Cornicy v. Cochran, 369 V'. 8. 506, 514; Brookhart v. Janis,

,

a

a waiver defense is supported by evidence, we may not de

termine either its sufficiency or its effect. We are

however, that the possibility that such a defense may be

asserted cannot provide the basis for an affirmance of the

district court's judgment.

2. The second suggested justification will also have dif.

ferent validity for different employees. Plaintiffs property

do not challenge the public executive's right to use political

philosophy or affiliation as one criterion in the selection of

policy-making officials. Moreover, considerations of per.

sonal loyalty, or other factors besides determination of

policy, may justify the employment of political associates

in certain positions. It is difficult to believe, however, that

any such justification would be valid for positions such as

janitors, elevator operators or school teachers. Thus, again,

justification is a matter of proof, or at least argument, di-

rected at particular kinds of jobs. The possibility of such

valid justification for some positions does not afford a basis

for dismissing all of plaintiffs’ claims without a trial.

3. The third possible justification would appear to have

the greatest force. It is given concrete factual support by

defendant's detailed affidavit and legal support by opinions

recognizing that a public employer, like his private counter.

part, has a significant interest in effective supervision of

his employees. The factual question, however, must await

the outcome of the trial since, as we have already noted,

plaintiffs have not completed their discovery and have filed

affidavits which, if true, tend to undermine the broad posi-

tion asserted by defendant, or at least to impeach his jus-

tification in particular instances.

384 U. S. 1, 4: Minois v. Allen, 397 U. S. 337, 343. See alo

Stevens v. Marks, 383 U. S. 234, 243-244-

But cf. Mr. Justice Harlan’s separate opinion, id. at 246, 248.

The legal proposition that the State has a strong interest

in allowing its executives to exercise broad discretion in the

performance of their managerial functions is, of course,

well established.” The State’s interest in avoiding the in-

from litigation brought by dismissed employees would ap-

.

8

£

‘

£

plaintiffs’. However, there are several considerations

«hich, we believe, foreclose such a rule.

is inherent in the performance of the work of government.

It is now axiomatic “‘that the state and federal govern-

ments, even in the exercise of their internal operations, do

not constitutionally have the complete freedom of action

enjoyed by a private employer.” Cafeteria Workers v.

McElroy, 367 U. S. 886, 897-898. The price which a govern-

ment must pay to protect the constitutional liberties of its

employees is some loss of the efficiency enjoyed by private

employers; the Supreme Court has repeatedly decided that

the value of those individual liberties is well worth the cost.

That cost will loom large only if it ix assumed that po-

litieal considerations will motivate a large number of em-

ployment decisions. Unquestionably, to the extent that

department heads in fact employ or dismiss highway main-

tenance workers, elevator operators, janitors, and com-

parable employees on the basis of their political affiliation,

26. See note 23, supra.

ny

A24

they may find it necessary to defend litigation and burden

some to explain their decisions. But to the extent

ment decisions are based on political considerations, they

involve a factor not normally present in the private sector:

the tendency of that factor quite clearly is in the direction

of less, rather than more, efficiency.” Thus, reflection per.

27. The courts which have upheld the patronage system have

assumed as a matter of policy that it wreaks ‘‘a devastating effect

. ++ upon the orderly administration of government.’’ See

v. Dwyer, 447 F. 2d 482, 483 (2d Cir. 1971), cert. denied, 404

U. S. 1020. Similarly, the majority of the Supreme Court of

Pennsylvania acknowledged regret at finding it necessary to sus.

tain the patronage system in that State. See American Federa.

tion of State, County and Municipal Employees v. Shapp, 280

A. 2d 375, 378. The Supreme Court's comment in Er Parte

Curtis about a requirement that a public employee contribute pri-

vate funds to a political campaign would apply equally to a re.

quirement that he contribute services:

““A feeling of independence under the law conduces to

faithful public service, and nothing tends more to take a

this feeling than a dread of dismissal. If contributions from

those in public employment may be solicited by others in

official authority, it is easy to see that what begins as a re.

quest may end as a demand, and that a failure to meet the

demand may be treated by those having the power of removal

as a breach of some supposed duty, growing out of the po-

litical relations of the parties. Contributions secured under

such circumstances will quite as likely be made to avoid the

consequences of the personal displeasure of a superior, as to

promote the political views of the contributor—to avoid a

discharge from service, not to exercise a political privilege.

>

If persons in public employ may be called on by those in av-

thority to contribute from their personal income to the ex-

penses of political campaigns, and a refusal may lead to put-

ting good men out of the service, liberal payments may be

made the ground for keeping poor ones in. So, too, if a part

of the compensation received for public services must be con-

tributed for political purposes, it is easy to see than an in-

crease of compensation may be required to provide the means

to make the contribution, and that in this way the govern-

ment itself may be made to furnish indirectly the money to

defray the expenses of keeping the political party in power

that happens to have for the time being the control of the

public patronage.’’ 106 U. S. 371, 373-375.

See also United Public Workers v. Mitchell, 330 U. S. 75, 121-123

(Mr. Justice Douglas dissenting in part).

A25

suades us that in the long run the State’s strong interest in

ecient management is at least consistent with, and may

well favor, the recognition and protection of the constitu-

tional rights asserted in this case.

Of greater significance is the fact that as the number of

employees affected is increased, the importance of preserv-

ing their First Amendment freedoms likewise grows. In-

deed, when numbers are considered, it is appropriate not

merely to consider the rights of a particular janitor who

may have been offered a bribe from the public treasury to

obtain his political surrender, but also the impact on the

body politie as a whole when the free political choice of

millions of public servants is inhibited or manipulated by

the selective award of public benefits. While the patronage

system is defended in the same of democratic tradition, its

paternalistic impact on the political process is actually at

war with the deeper traditions of democracy embodied in

the First Amendment.

Vv.

The preceding section of this opinion raises questions

about the plaintiffs’ apparent assumption that all of their

claims have equal merit. Their complaint was filed ‘‘on

behalf of the entire class of union members employed by

the Defendant, as Secretary of State.’’ No doubt the class

action would have been proper if plaintiffs’ procedural due

process claim were still in the case. Whether the district

court should now determine that a class action is appro-

priate, or if so, how the class or classes should be defined,

either for discovery or trial purposes, are matters best

appraised by the district court in the first instance. Other

than identifying the problem, we express no opinion on such

matters.

Nor do we make any decision about the nature or scope

of relief which may be appropriate if one or more of the

plaintiffs should prevail. We merely hold that the district

SE Eee Epo prRs

: a

A26

court committed error when he entered summary judgment

for the defendant. The record does not support a factual

finding that no plaintiff was dismissed for an impermissible

reason or the legal conclusion that defendant was justified

in prescribing active support of the Republican Party as

condition of continued public employment.

Plaintiffs are entitled to an opportunity to prove their

case. The judgment is reversed and the case is remanded

to the district court for further proceedings.

Campset, District Judge, concurring.

The scholarly and perceptive exposition of the pertinent

case law so ably expressed by Judge Stevens, persuades me

to concur in the result reached by our decision. Indeed, |

must, for such a result is dictated by the sweeping holding

of the Supreme Court in Perry v. Sindermann, ___ U. §.

__» 40 U. 8. L. W. 5087 (June 29, 1972)."

Sindermann is arguably distinguishable from this case

on its facts ; it did not involve a discharged public employee

who alleged, as here, that his dismissal was predicated upon

his political party affiliation or activities. Rather, the plain-

tiff there, a state college teacher, claimed that his employ-

ment was terminated because of his statements criticizing

the college’s Board of Regents, purportedly made in the

exercise of his First Amendment right of free expression.

The case was thus similar to prior decisions in the special

and delicate area of ‘‘academic freedom.’’ such as Keyis-

hian v. Board of Regents, 385 U. 8S. 589,? and Pickering v.

1. Although my remarks are confined to the First Amendment

aspects of today’s ruling, I agree fully with Judge Stevens that

the Supreme Court’s decision in Board of Regents v. Roth, _..

U. 8. . , 40 U. S. L. W. 5079 (June 29, 1972) forecloses the

plaintiffs’ Fourteenth Amendment claim that they were entitled

to “‘notice’’ and a “‘hearing’’ before their employment could be

terminated.

2. The Court held in Keyishian:

‘‘Our Nation is deeply committed to safeguarding academic

freedom, which is of transcendent value to all of us and not

—— ~ a Ps abate meee

A27

Board of Education, 391 U. S. 563, and could have been

decided, in my view, within the framework of such prece-

dents. However, the language of Sinderman is not so

circumscribed but appears far-reaching and manifestly un-

equivocal. Thus:

“For if the government could deny a benefit to a

person because of his constitutionally protected speech

or associations, his exercise of those freedoms would

in effect be penalized and inhibited. This would allow

the government to ‘produce a result which [it] could

not command directly.’ Speiser v. Randall, 375 U. S.

513, 526. Such interference with constitutional rights

is impermissible.” (..... U.S... 40 U. S. Law Week

at 5088.)

Sindermann was decided after briefing and argument of

the case at bar and, as I have stated above, prompts me to

concur in the result reached by Judge Stevens’ thoughtful

opinion. I am constrained at the same time, however, to

candidly express several observations that I believe are

highly relevant, if not critical, concerning the import and

effect of our ruling.

First, it cannot be doubted that our decision stands in

sharp and irreconcilable conflict with the decision of the

Second Circuit in Alomar v. Dwyer, 447 F. 2d 482 (1971),

and the decision of the Pennsylvania Supreme Court in

American Federation of State, County and Municipal

Employees, AFL-CIO v. Shapp, 280 A. 2d 375 (1971). Both

of those Courts squarely rejected, as a matter of law, the

precise claim made by the plaintiffs here, i.e., that they

were discharged from their government jobs because of

their allegiance to one political party and refusal to join or

support another, and that such discharge violated their

First Amendment rights of free association. Both Alomar

merely to the teachers concerned. That freedom is therefore a

special concern of the First Amendment, which does not tol-

erate laws that cast a pall of orthodoxy over the elassroom.”’

385 U. S. at 603.

ot

wee

MELOY PON SILLA LATER GIOTTO POI ILS:

a

ay

A28

and Shapp were decided within a year prior to Sindermans,

Indeed the Supreme Court without a dissenting voice de.

nied certiorari in Alomar on January 10, 1972, only siz

months prior to that Court’s decision in Sindermann,

Alomar v. Dwyer, 404 U. 8. 1020. Too, discussion or even

citation of Alomar or Shapp was conspicuously omitted

from the Sindermann opinion (or in the concurring and

dissenting opinions).

Thus, as matters now stand, the declared law of the

Second Circuit and of the State of Pennsylvania is dia.

metrically opposed to the law of this Circuit, as so ably

formulated and announced herein.

Moreover, it can reasonably be expected that the conflict

and attendant confusion will grow and multiply as other

courts are called upon to consider the same issue. Indeed,

it should be noted that at least two District Judges in this

Circuit have recently followed the Alomar and Shapp deci-

sions, and thus have rejected claims that public employees

cannot be discharged because of their political party affilia-

tions without violating the First Amendment. In Burns y.

Elrod. ........... F. Supp. .......... (No. 71 C 607, N. D. Tl, May 31,

1972), Judge Bauer dismissed a complaint alleging that the

newly elected Democratic Sheriff of Cook County violated

the First Amendment by discharging Republican employees

who refused to become Democrats. And in Shakman v.

Democratic Organization of Cook County, . F. Supp.

etidead (No. 69 C 2145, N. D. Ill. J uly 28, 1972), Judge Maro-

vitz held, in reliance upon Alomar and Burns, that, ‘‘politi-

cal considerations in public employment are only forbidden

where those considerations affect voter-candidate-taxpayer

rights and in all other respects patronage employees may

be hired or fired based on political affiliation.” (Slip

Opinion, p. 20.)

3. In accord with Alomar and Shapp, and also in conflict with

our decision, is the holding of the Eighth Circuit in Norton v.

Blaylock, 409 F. 2d 772 (1969), affirming the decision of the

Western District of Arkansas, 285 F. Supp. 659 (1968).

A29

The conflicting and confused state of the law is troubling

enough, but I am even more concerned over the impact of

today’s decision in thrusting the federal courts into the

administration and daily operations of state and local gov-

ernments. It seems to me that the inevitable effect will be

to convert the federal courts into ‘‘super civil service com- |

missions’’ for all state and local government employees not |

covered by state or local civil service laws. Any and all

such employees who are discharged can state an actionable

cdaim in the federal district court by simply alleging (as :

plaintiffs have done here) that the discharge was caused by

political party affiliations or activities. The federal courts :

will then be obliged to conduct full trials on the merits to &

determine whether the claims are factually well founded,

and the resulting decisions will of course be appealable.

In this case alone, the number of trials and appeals could

total as high as 1,946—the number of employees that the

defendant Lewis claims he ‘‘found it necessary to dis-

charge’’ after he became Secretary of State ‘‘hecause of

the laxity, inefficiency and confusion prevailing in the

Office.’’ And this represents the possible number of trials

and appeals arising from but one department of a State’s

government and one change of administration in that de-

partment! Considering that there are thousands of state,

county and municipal employees not covered by civil serv-

ice, and that changes of political administration oceur in

many departments of state and local government after

every election, the volume of potential litigation which could

result from our decision truly becomes catastrophic.

The scope and complexity of the litigation problems

created by our ruling are not lessened by our limiting its

applicability to ‘‘non-policy making’’ government person-

nel. It is simple enough to say that janitors, clerk-typists

and elevator operators are ‘‘non-policy making’’ employees,

but how far up in the bureaucratic echelon can the distine-

a

A30

tion be judicially drawn? What about a janitorial super.

visor, the director of a stenographic pool, a personne

manager, a deputy assistant division head, a deputy dire.

tor, or even a secretary to a top-echelon director or depart.

ment head who may have access to confidential information!

As Judge Stevens so aptly states, there may be instances

when political affiliation constitutes a proper qualification

for public employment, particularly in the selection and

appointment of ‘‘policy-making”’ officials. Indeed, no one

has challenged the right of an elected official to appoint to

such positions and for whatever reasons he deems proper,

persons in whose loyalty and competence he has the highest

confidence. The difficulty arises in attempting to fashion an

appropriate and workable judicial standard for distinguish.

ing between ‘‘policy-making’’ and ‘‘non policy-making”

positions. In my judgment, the constitution would permit a

public official to hire or dismiss on the basis of political

association any employee engaged directly or indirectly in

the formulation or implementation of the policies of the

particular governmental office or agency. A more precise

standard is difficult to articulate and thus the true impact

of today’s decision must necessarily await case by case

determination.*

Another vexing and potentially troublesome problem

which emerges from our ruling concerns the practical appli-

cation of the burden of proof standard. It goes without

4. In addition to the inherent diffieulty of defining the term,

*‘non-poliey making emplovee’’, another problem comes to the

surface that is equallv perplexing and is of constitutional dimen-

sion. If we must judge whether or not an emplovee may be dis-

charged for exercising his First Amendment rights of free politi-

eal association on the basis of his job classification, are we not

saying that some employments are entitled to greater constitu-

tional protection than others. Are the constitutional rights of

an individual to be defined solely with reference to the nature of

his employment? I know of no precedent in our system for im-

posing a ‘‘sliding scale’’ of importance upon the constitutional

rights of individuals according to their rank. title, job description

or duties, whether in or out of government.

A31

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, ........ 3a. @

U. 8. L. W. 5079 (June 29, 1972). Thus, if a public em-

ployer 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 associa-

tions. Such a burden is a heavy one but in my view is

necessitated by the limited nature of the right Sindermann

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.

Therefore, based upon the broad holding of the Supreme

Court in Sindermamn, I concur.

Kuey, Circuit Judge, dissenting.

I respectfully dissent.

No case decided by this court, and none relied upon by

the majority, is a precise precedent for the holding of the

majority that plaintiffs” discharges for partisan political

reasons were constitutionally ‘‘impermissible.’’ The Second

Cirenit in Alomar v. Dwyer, 447 F. 2d 482 (2nd Cir. 1971),

holds to the contrary. The majority opinion’s disavowal of

Alomar is based upon footnote 9 in Board of Regents v.

Roth, .......... . ee , 40 U. S. L. W. 5079, 5081 (June 29,

1. Plaintiffs were non-civil service employees specifically ex-

empt from the Illinois Personnel Code. See Sm. Hurd Ann. Stat.

ch. 127, § 63b104e(2) (Cum. Supp. 1972).

LP PAY Lye Pers Ors nee enema, - roe

EOE,

rT

A32

1972), which the majority thinks laid to rest the “* premise”

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

aff’d, per curiam, 341 1]. 8. 918 (1950), upon which the court

in Alomar relied in deciding that ‘‘the sole protection for

government employees who have been dismissed for politi.

cal reasons must be found in civil service statutes or regu.

lations.’’ Alomar, supra at 483. J udge Campbell’s coneyr.

rence implies that the Supreme Court has not, at least not

yet, indicated any disagreement with the Alomar decision,

In my opinion the Alomar court’s decision on the First

Amendment issue before it is unaffected by what is said jp

the Supreme Court’s footnote 9 in the Roth decision,

I am persuaded by the decision in Alomar. In my

opinion, the district court, in the case now before us,

did not err in deciding as a matter of law that plaintiffs’

First Amendment right of ‘free political association” was

not violated by their discharge by the defendant.

The majority opinion’s asserted ‘‘demise”’ of Bailey in

my view has no foundation in the Roth footnote. Justice

Stewart’s comments in footnote 9, considerations essential

to Roth, are directed to the procedural decision, not to

the First Amendment decision, in Bailey. He broadens the

scope of the footnote by quoting Justice Blackmun’s re-

mark in Graham v. Richardson, 403 U. S. 365, 374 (1971),

that the Supreme Court ‘‘now has rejected the concept

that constitutional rights turn upon whether a govern-

mental benefit is characterized as a ‘right’ or as a

‘privilege.’ ’’ In addition to Graham, Justice Stewart cites

Shapiro v. Thompson, 394 U. S. 618, 627 n. 6 (1969), as an

example of an equal protection case where the ‘‘right”’

v. ‘‘privilege’’ doctrine has been rejected; Morrissey v.

Brewer, .......... eee , 40 U. S. L. W. 5016 (June 29,

1972), Bell v. Burson, 402 U. S. 535 ( 1971), and Goldberg v.

Kelly, 397 U. S. 254 (1970), due process cases supporting

the theory of Roth; and Pickering v. Board of Education,

——_ ater 08s ere ReE ors ne HS

A33

991 U. S. 563 (1968), and Sherbert v. Verner, 374 U. S.

998 (1963), the cases most germane to this appeal because

they involve First Amendment claims.

In the two First Amendment cases the Supreme Court

circumvented the ‘‘right’’ v. ‘‘privilege’’ theory upon a

doctrine described by Professor William Van Alstyne as

“The Doctrine of Unconstitutional Conditions.’’ 81 Harv.

L. Rev. 1439, 1445-1449. That doctrine in essence forbids

the government from imposing conditions on government

employment which would require the employee to surrender

a right which he would be entitled to exercise as a private

citizen. It is the implementation of the doctrine that re-

sults in the ‘‘rejection’’ of the ‘‘right”’ v. ‘‘privilege”’

dichotomy where First Amendment issues are involved.

The unconstitutional conditions doctrine has what Pro-

fessor Van Alstyne calls a ‘‘basic flaw’’:

The basic flaw in the doctrine is its assumption that

the same evil results from attaching certain conditions

to government-connected activity as from imposing

such conditions on persons not connected with govern-

ment. In many cases this may be true, but the con-

nection with the government may in certain circum-

stances make otherwise unreasonable conditions quite

reasonable. 81 Harv. L. Rev. at 1448.

It is this ‘‘flaw’’ that is implicitly recognized in Batley’s

discussion of the First Amendment claim and which is

implicitly acknowledged in Alomar. It was the First

Amendment decision in Bailey, not the due process deci-

sion, which the Second Circuit relied upon in rejecting

the claim of Daisy Alomar that she had been discharged

in violation of her associational right:

“Tt is next said that the appellant’s dismissal im-

pinged upon the rights of free speech and assembly

protected by the First Amendment, since the dis-

missal was premised upon alleged political activity

a

A34

* * * But the plain hard fact is that so far as the

Constitution is concerned there is no prohibition

against the dismissal of Government employees be.

cause of their political beliefs, activities or affiliations.”

Alomar v. Dwyer, 447 F. 2d 482, 483 (2nd Cir. 1971),

citing Bailey v. Richardson, 182 F. 2d 46, 59 (D, ¢

Cir. 1950), aff’d, per curiam, 341 U. S. 918 (1950).

Ix THe Unrrep Srates Disraicr Covert.

For the Southern District of Illinois

Southern Division

luxor State Empiovers Ustox, )

et al.,

Plaintiffs,

vs. > No. 4743

Joun W. Lews,

Defendant. )

FINDINGS OF FACT AND CONCLUSIONS OF LAW.

FINDINGS.

1. This action is brought as a class suit by the Illinois

State Employees Union, Council 34, American Federation

of State, County and Municipal Employees (AFL-CIO), and

by nineteen individuals against John W. Lewis, Secretary

of State of the State of Illinois. Plaintiffs have sued in

Federal Court claiming jurisdiction under the Civil Rights

Act of 1871 (42 U. S. C. § 1983) ; the complaint alleges that

the amount in controversy exceeds $10,000.00, as to each of

the plaintiffs, exclusive of interest and costs. There is no

diversity of citizenship.

2. The individual plaintiffs claim they were employed

in the Office of the Illinois Secretary of State prior to the

appointment of defendant John W. Lewis as Secretary of

State by Governor Richard B. Ogilvie, on October 13, 1970.

3. Mr. Lewis was appointed by Governor Ogilvie to

fill the vacancy in office caused by the death of the late

secretary of State, Paul Powell, on October 10, 1970.

4. Plaintiffs allege they were employed in lower, nop.

policy making or clerical positions, ic., jobs “without

executive discretion,’’ in the Secretary of State’s office

prior to Mr. Powell’s death, and that they were syh

sequently discharged because of their political affiliations

Specifically, the individual plaintiffs allege, on information

and belief, that they were discharged because they are not

members of, and have not contributed money to, the Re

publican Party, and have not campaigned or worked for

candidates of regular organizations of the Republican

Party.

5. The complaint alleges that the individual plaintiffs

were given no specific reasons for their job terminations

and that they were officially notified of same by letters

signed by the Personnel Supervisor in the Secretary of

State’s Office stating that their services were no longer

required. Copies of these letters are attached to the com-

plaint.

6. The plaintiffs allege that their discharge was in viola.

tion of the First and Fourteenth Amendments to the

United States Constitution; they claim they could not be

terminated because of their political party activities or

affiliations, and that defendant was required to afford them

full procedural due process rights of notice, hearing and

review prior to their termination.

7. The jobs previously held by the individual plain.

tiffs are non-civil service positions, i.e., not within the

coverage of the Illinois State Personnel Code (Ill. Rev.

Stat. 1969, chap. 27, paras. 63b 101-120).

8. The plaintiffs further allege that many other non-

civil service employees in the Secretary of State’s Office

have been terminated since defendant Lewis was appointed

and that others will be in the future unless this Court

interferes. Plaintiffs have prayed for temporary and per-

manent injunctive relief reinstating them to their jobs,

COPY BOUND T

were previously, but are not now, employed by an in-

strumentality of the State of Illinois (the Secretary of

State’s Office) and the same is true of all members of the

alleged class that plaintiffs seek to represent in this action.

The complaint does not state, nor does it otherwise appear

in the record, the manner or circumstances in which the

plaintiff union or its leaders or representatives came into

concert with the individual plaintiffs in instituting this

action.

10. The defendant Lewis has filed a motion for summary

judgment pursuant to Rule 56 of the Federal Rules of Civil

Procedure, claiming that Plaintiffs have no cause of action

and are entitled to no relief as a matter of law. The motion

is supported by an affidavit of Mr. Lewis concerning the

discharge of personnel from the Secretary of State’s Office

after he was appointed to that Office in October, 1970.

11. Mr. Lewis’ affidavit is lengthy and the Court finds

it unnecessary to make a detailed recitation of the con-

tents of the affidavit herein. It is sufficient to state that

the affidavit, which has not been disputed by the plainiffs,

supports the following findings by the Court:

(a) When Mr. Lewis assumed his post as Secretary

of State, he caused a survey or study to be made of the

manner in which the Office was being run; he found

widespread conditions of inefficiency, laxity and con-

Oo CLOSE IN CENTER

B4

fusion prevailing in many divisions and sections of

the Office.*

(b) As a result, Mr. Lewis believed in good faith

that it was vitally necessary, in the interest of im.

proving the efficiency of the Office and protecting the

interest of the public, to make immediate and

seale changes in the manner in which the Office was

being operated and in the ranks of personnel that

were then employed.

(c) In the staffing of the secretary of State’s

Mr. Lewis has not pursued a plan of recruiting an

army of personnel to perpetuate himself in office either

as Secretary of State or in any other elected post or

position.

° e examples of such conditions thus found by Mr. Lewis

were:

(1) There was no effective internal auditing system or

procedure in effect to maintain efficient accounting, financial

record-keeping or fiscal control.

(2) There was no master or central filing system to assure

safe custody, control or awareness of contracts, leases and

other important documents.

(3) There were no effective controls over purchasing pro-

cedures of the office and many purchases were being made by

the office in a shockingly loose manner. There was no limita-

tion of the authority of employees to sign orders for and

receive services, supplies, transportation or repairs. As a

consequence there was no effective control of these matters

and it was impossible to determine whether the services and

supplies so ordered and received were useful or necessary in

the operation of the department.

(4) The section of the office in charge of auditing of

truck license plate reciprocity and prorating was grossly

mismanaged in that the laws were not being enforced and

truck license fees were not being collected impartially or

diligently.

(5) Much mail addressed to the office by members of the

public had been unanswered and ignored.

(6) Many of the public’s applications for vehicle licenses

had been lost or misplaced.

(7) Vendors were selling their products in State buildings

without written contracts.

COPY BOUND T

B5

CONCLUSIONS.

1. The Court has jurisdiction of the parties.

2. There is no genuine issue as to any material fact.

3. There is no support in the record to find for the

intiffs on their claim that discharge of the individual

plaintiffs and the other members of their alleged class from

the Secretary of State’s Office was solely because of their

‘tical affiliations or activities. On the contrary, it clearly

appears, and the Court so finds, that such discharges were

carried out pursuant to defendant Lewis’ undisputed good

faith belief that immediate and large-scale changes in the

office procedures and the ranks of personnel in the Secretary

of State’s Office were critically necessary to improve the

efficiency of the office and protect the public interest.

4. As non-civil service employees in the Secretary of :

State’s Office the individual plaintiffs and other members ;

of their alleged class were employees at will; the power :

to remove such employees is incident to the power of ap-

pointment. Keim v. United States, 177 U. S. 290; Parsons

y. United States, 167 U. S. 324; Bailey v. Richardson, 182

F. 2d 46 (Dist. of Colum. Cir.). Where, as in the instant ;

case, the discharge of such employees is not accompanied ;

by a charge or brand of moral turpitude, security risk, or ;

other stigma of serious personal unfitness or misconduct,

the discharge may be effected summarily, without the giving

of reasons, prior notice, hearing or other procedural due

process steps. Cafeteria & Restaurant Workers Union v.

McElroy, 367 U. S. 886; Vitarelli v. Seaton, 359 U. S. 535;

Parker v. Board of Education, 237 F. Supp. 222, affirmed,

348 F. 2d 464 (4th Cir.). Summary discharge of the in-

dividual plaintiffs and other members of their alleged class

did not infringe their rights under the First and Fourteenth

Amendments to the U. S. Constitution.

Sa4 RNY OT a Sete spp reerstetes eimpergs omen

RS eNO goY

Oo CLOSE IN CENTER

B6

5. Plaintiffs’ reliance on Shakman v. Democrati,

Organization of Cook Cownty, 435 F. 2d 267 (7th Cir.) is

misplaced. In that case, the complaint attacked the Demo.

eratic patronage system in Cook County, claiming that the

system was designed and operated to maintain a political

patronage army that made it practically impossible for nop.

Democratic candidates to win an election. Members of the

‘‘army’’ were required to contribute money to the system’,

party and to do party work during both business and nop.

business hours. No such facts have been shown to be pres.

ent in the instant case. Indeed, it appears without cop.

tradiction from the defendant Lewis’ affidavit that he has

not pursued a plan of building a political patronage

‘“‘army”’ to perpetuate himself in office or in power. Rather,

the record shows defendant Lewis upon assuming his office

was most deeply concerned with the immediate and pressing

public need to eliminate inefficiency and ‘‘dead wood”’ in

the Secretary of State’s Office; whether he was right or

wrong in each and every instance of discharging (or hiring)

particular employees in the process of carrying out his

basic public improvement program is not a matter for this

Court to second-guess or countermand. For that matter,

whether he was right or wrong in appraising the overall

efficiency and performance of all the personnel in his Office

is not an area in which the Court can properly substitute

its discretion or judgment. Absent a clear or admitted

showing of firings because of a deliberate design to per-

petuate an elected official or his political party in power,

and thus exclude others from any practical opportunity to

complete at the polls, the traditional privilege to hire and

fire non-civil service public employees is clearly unaffected

and undisturbed by the decision in Shakman, supra.

6. The plaintiffs have no cause of action and the de-

fendant is entitled as a matter of law to a final judgment

of dismissal of the action on the merits and to recover his

costs. Judgment will be entered accordingly.

/s/ Omer Poos

Dated: July 23, 1971

JO!