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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1973
- **Citation:** 410 U.S. 928

## Text

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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.

THE GUNTHORP-WARREN PRINTING COMPANY, CHICAGO

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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
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4

‘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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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

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

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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.

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MELOY PON SILLA LATER GIOTTO POI ILS:
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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,

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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-

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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

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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!

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1735%3A1. Public record. Not legal advice.