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

DEC 18

oO | IN THE

o pupceme Court of the Gnited ame

Ocroser TeRm, 1972.

No. 72-8956

ILLINOIS STATE EMPLOYEES UNION, COUNCIL 34,

AMERICAN FEDERATION OF STATE, COUNTY,

AND MUNICIPAL EMPLOYEES, AFL-CIO, an unty-

CORPORATED LABOR ORGANIZATION; WILLIAM E. BAILEY,

ELIZABETH BLAND, OLGA CARNDUFF, HATTIE T.

COBB, BRENDA JUNE DOZIER, FRANCES ELLIS,

CAROLINE ELIZABETH ESTES, JUANITA TYLER

FRANKLIN, IRVING M. FRANKS, MARJORIE

LILLIAN HARMAN, HELEN LOUISE HUMPHREY,

DOROTHY EILEEN JACKSON, MATTHEW LOW,

MARSHALL LEE REYNOLDS, HELEN MAXINE

STATON, HELEN JANICE STOERMER, ROBERT

EVERETT TANKERSLEY, MARCELLA WALTERS,

and DORA ELLEN WELCH, as rxpivipvats aNp As REP-

RESENTATIVES OF A CLASS,

Petitioners,

vs.

JOHN W. LEWIS, ixpivipvatty anv 1s Secretary or STATE

OF THE State oF ILLINoIs,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT.

GiiBert A. CorNFIELD,

Kieran, CornFietp & FeLpmax,

10 South LaSalle Street,

Suite 452,

Chicago, Mlinois 60603,

Attorneys oe renee

Ta a i a a nee

i

—_

~<— PENPALS LT PLE ULI LY SEE LN CRL LE NLLIE DEL NE BEE HE LORE OEE EOL

INDEX

—— PAGE

SD Sctien daccherkesvddwtnsneseedccoosees 3

RE ETEEES BRET Une ger ap Sg 5 Ee 3

I ID cece ccncccntcacstessecevesscs 3

Statutory and Constitutional Provisions Involved .... 3

IS Or GE ID vac ccaccecnccicewcsssdsvcnces 4

How Federal Question Was Presented ............ 7

Reasons for Granting the Writ .................... 7

SE. Sak 4 duees seneueseudwheCidndekessencecess Al

TaBLE or Cases CITED.

Board of Regents v. Roth, 408 U. S. 564, 53 L. Ed.

SE kad eddenceevedssvaviocneea 7

Kennedy v. Sanchez, ........... F. Supp. ......... . 41 LW 2261

eS Rf rrr rere 9

Mims v. Board of Education, .......... 2 a (Docket

No. 72-1007, November 10, 1972) ................ 9

Perry v. Sindermann, 408 U. S. 593, 33 L. Ed. 570, 92

ee EEE hiochiveGaneeecsObsrdicreevens 8

Orner AvuTHoritTiEs CITED.

United States Civil Rights Act Title 42 U. S. C.

EE ie etake oder eeseentedeudins cous 4,7

United States Constitution, Amendment I .......... 3

United States Constitution, Amendment XIV ...... 4

———

IN THE

Supreme Court of the Gnited States

Octoser Term, 1972.

ILLINOIS STATE EMPLOYEES UNION, COUNCIL 34,

AMERICAN FEDERATION OF STATE, COUNTY,

AND MUNICIPAL EMPLOYEES, AFL-CIO, an unin-

CORPORATED LABOR ORGANIZATION; WILLIAM E. BAILEY,

ELIZABETH BLAND, OLGA CARNDUFF, HATTIE T.

COBB, BRENDA JUNE DOZIER, FRANCES ELLIS,

CAROLINE ELIZABETH ESTES, JUANITA TYLER

FRANKLIN, IRVING M. FRANKS, MARJORIE

LILLIAN HARMAN, HELEN LOUISE HUMPHREY,

DOROTHY EILEEN JACKSON, MATTHEW LOW,

MARSHALL LEE REYNOLDS, HELEN MAXINE

STATON, HELEN JANICE STOERMER, ROBERT

EVERETT .TANKERSLEY, MARCELLA WALTERS,

anD DORA ELLEN WELCH, as rnprvipvals AND AS REP-

RESENTATIVES OF A CLASS,

Petitioners,

vs.

JOHN W. LEWIS, rnprvipvatty anv as Secretary or STATE

OF THE State oF ILuinors,

Respondent.

— - 7 _ - net SEAR AUCNE BA OA ube F elie rh, a OR ES 5

SRATER WAAR LEA TRS EEN IS REE ASS em TaneewInd encten . |

ot, PETTY

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT. ‘

6.

Petitioners Illinois State Employees Union, Council 34, «

American Federation of State, County, and Municipal ,

Employees, AFL-CIO, an unincorporated labor organiza-

tion; Wilma E. Bailey, Elizabeth Bland, Olga Carnduff, ‘

Hattie T. Cobb, Brenda June Dozier, Frances Ellis, Caro- |

line Elizabeth Estes, Juanita Tyler Franklin, Irving M. ,

Franks, Marjorie Lillian Harman, Helen Louise Humphrey,

Dorothy Eileen Jackson, Matthew Low, Marshall Lee

Reynolds, Helen Maxine Staton, Helen Janice Stoermer,

Robert Everett Tankersley, Marcella Walters, and Dora

Ellen Welch, as individuals and as representatives of a

class, hereby respectfully pray that a writ of certiorari

issue to review a part of the decision of the United States

Court of Appeals for the Seventh Circuit entered in this '

proceeding on September 18, 1972. A Petition For Writ of

Certiorari to the United States Court of Appeals for the

Seventh Circuit has been filed by the Respondent with the

Supreme Court of the United States on or about December

5, 1972. The Respondent seeks review of the decision of the

Court of Appeals in remanding the subject case to the ,

United States District Court. The subject Petition For

Writ of Certiorari seeks review of a holding by the Court

of Appeals on an important question of federal law decided

adversely to the Petitioners in connection with the subject |

decision. '

The decision of the Court of Appeals reversed and re-

manded the case to the United States District Court for the

Southern District of Illinois thereby reversing the decision

of the District Court entering summary judgment in favor

of the Respondent entered on July 23, 1971. '

AA EE NEED

OPINION BELOW.

_ The opinion of the United States Court of Appeals for

the Seventh Circuit is not as yet reported. The docket

number for the case is No. 71-1619.

JURISDICTION.

This Court’s jurisdiction is invoked under Title 28 United

States Code Section 1254.

QUESTION PRESENTED.

May non-policy making employees of state government

be discharged from their employment as a matter of law

under the Fourteenth Amendment to the Constitution of the

United States and the United States Civil Rights Act, Title

42 U. S. C. 1983, without a prior specific statement of

reasons and an opportunity to be heard before an impartial

reviewing authority of the employer where said discharges

may have been motivated by the employees’ political iden-

tification.

STATUTORY AND CONSTITUTIONAL PROVISIONS

INVOLVED.

The constitutional and statutory provisions applicable

to this case are set forth as follows:

The United States Constitution, Amendment I, provides:

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of

the press; or the right of the people peaceably to as-

semble, and to petition the Government for a redress

of grievances.

me

4

The United States Constitution, Amendment XIV, pro-

vides, in pertinent part, as follows:

Section 1. All persons born or naturalized in ‘the

United States, and subject to the jurisdiction thereof,

are citizens of the United States wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of |

law, nor deny to any person within its jurisdiction the

equal protection of the laws.

The United States Civil Rights Act Title 42 U.S.C. |

§ 1983, provides as follows:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any citi-

zen of ‘the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceed-

ing for redress.

Des Rey IE TRES te

STATEMENT OF THE CASE.

Suit was commenced by a labor organization and a sub-

stantial number of its members, employed in non-policy

making positions in the Office of the Secretary of State of

the State of Illinois. The Petitioners represented them-

selves, as well as other members of the organization sim-

ilarly employed by the Secretary of State. Defendant to

the action has been the duly appointed Secretary of State,

sued as an individual and in his official capacity.

Jurisdiction of the federal court was founded under the

First and Fourteenth Amendments to the Constitution of

the United States of America and the United States Civil

Rights Act, Title 42 United States Code Section 1983.

i.

EE mat OIE RRSP IMO oS

5

The Complaint was filed on January 22, 1971 alleging,

by verification, that the individual Plaintiffs had been dis-

charged, and that other members of the class were to be

terminated from their positions with the Office of the Sec-

retary of State without any statement of reasons or oppor-

tunity to be heard. In addition, the Complaint alleged that

the Plaintiffs believed that the discharges were actually for

one or more of the following reasons:

(a) Each and ali of the individual Plaintiffs have

not been members of the regular organization of the

Republican Party, a political organization, in the state,

county, and municipalities where they reside and work;

and/or

(b) Each and all of the individual Plaintiffs have

not contributed at all or sufficiently to said Republican

Party; and/or

(c) Each and all of the individual Plaintiffs have

not campaigned and worked for candidates of the

regular organizations of the aforesaid Republican

Party under the direction of the officers of said Party.

The Complaint also sought a general declaratory judg-

ment. The Plaintiffs alleged that the Defendant, in his

official position as Secretary of State, imposed a general

policy of terminating non-policy making employees without

any statement of reasons or opportunity for an impartial

hearing to review such reasons. The Plaintiffs also alleged

that the Defendant pursued a general policy of terminating

employees who have not met the standards of participation

in his political party, as set forth above.

The Complaint sought a declaratory judgment of the

rights of the Plaintiffs and the members of the class, as

well as appropriate equitable and legal relief.

On March 5, 1971 the Defendant filed his first responsive

pleading, a Motion to Strike and Dismiss, on the basis that

eS ----»' °°» —.

the verified Complaint was not well founded, as a matter

of law. On April 16, 1971 the Defendant moved for sum-

mary judgment.

In entering a final order for the Defendant, the District

Court appeared to have upheld both the Defendant’s Mo-

tion to Strike and Dismiss as well as the Motion for Sum-

mary Judgment. The District Court concluded that the suit

was not well founded in law. In paragraph 4 of the Con-

clusions, the District Court held that the power of the

Defendant, as Secretary of State, to summarily remove

the subject class of employees is incident to the power of

appointment. In the same paragraph, the Court implied

that ‘‘procedural due process steps’’ may only be required

if the discharges of the affected employees are ‘‘. . . ac-

companied by a charge or brand of moral terpitude,

security risk, or other stigma of serious personal unfitness

or misconduct.”’

The majority of the Court of Appeals held that a district

court was in error in concluding that the Plaintiff em-

ployees could be summarily discharged from their employ-

ment for reasons of their assumed political affiliation or

lack of political affiliation or for the purpose of replacing

such employees with members of the public employer’s

political party. The major thrust of the Court of Appeals

decision is to deal with the question of political patronage

among non-policy making public employees and the require-

ments of the First and Fourteenth Amendments to the Con-

stitution of the United States. However, subsidiary to the

decision of the majority was a rejection of the Petitioners’

contention that the affected employees were entitled to due

process prior to the time they were terminated by the

employing agency. Specifically, the majority concluded

that the Respondent public employer could not be obligated

to provide, upon request, a specific statement of reasons

and an objective hearing for the affected employees prior

ee emetm 8e t = PRE TD >

7

to their dismissal. In Footnote 1 to the majority opinion,

citing the decision of the Supreme Court of the United

States in Board of Regents v. Roth, 408 U. S. 564, 53 L. Ed.

2d 548, 92 S. Ct. 2701, the Court stated in the footnote in

part as follows:

‘... It is true that the reasons given by the Secretary

in his affidavit might be construed as charging mis-

management, 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 which requires

that we reject the ‘notice and hearing’ aspect of plain-

tiffs’ claim.’’

The Complaint filed herein specifically alleged that the

Plaintiff public employees and the class that they represent

were terminated from employment by the Defendant public

employer without affording preliminary procedures upon

their request as required by the Fourteenth Amendment to

the Constitution of the United States and United States

Civil Rights Act, Title 42 U. 8. C. Section 1983.

REASONS FOR GRANTING THE WRIT.

Unlike the plaintiff in Board of Regents v. Roth the indi-

vidual Plaintiffs-Petitioners in the subject case were all

public employees on a continuing employment relationship

with their employer who were summarily discharged from

that employment without a prior specific statement of

reasons and an opportunity to be heard.

We acknowledge the correctness of the decision of the

Court of Appeals in reversing the District Court’s con-

clusion and thereby holding, as a matter of law, such

public employees may be summarily dismissed for political

reasons. The Court of Appeals concluded that whether

any or all of such employees can be discharged from their

continuing employment involves a mixed question of law

and fact which must first be heard in a trial on the merits

before the District Court. Nevertheless, the majority of

the Court of Appeals concluded that as a matter of law

under such circumstances such employees are entitled to

the reasons and review of such discharges for the first

time during the pre-trial discovery proceedings and trial

in a Federal District Court pursuant to a complaint initi-

ated by them. Thus, the Court of Appeals has expanded the

decision of the Supreme Court in connection with the due

process issue in Board of Regents v. Roth, beyond the

limits of the fact situation in that case involving non-

tenured faculty members on term contracts to all non-

policy making public employees on indefinite employment

with publie bodies.

The decision of the Court of Appeals in this regard

raises significant unresolved federal questions in light of

the companion decision of the Supreme Court of the United

States in Perry v. Sindermann, 408 U. S. 593, 33 L. Ed.

2d 570, 92 S. Ct. 2694 (1972), decided by this Court con-

eurrent with Board of Regents v. Roth. In that decision

the Supreme Court of the United States held that it was

a mixed question of law and fact as to whether the affected

public employee had such a continuing interest in his

employment and expectation of continued employment

to warrant due process procedures by the employing agency

prior to the effective date of termination from such em-

ployment.

The effect of the decision of the Court of Appeals is to

cast a very substantial burden upon the Petitioner public

employees as well as on thousands of such employees

seattered throughout loval and state public bodies in our

country to initiate federal court actions in order to obtain

fundamental rights of due process after they have been

severed from employment and have lost their immediate

livelihood.

We submit that substantial doubt and confusion exist

among the courts and affected publie employees as they

attempt to apply and understand the effect the rulings of

the Supreme Court in Board of Regents v. Roth and Perry

v. Sindermann to the rights of the vast number of public

employees who are not on term contracts which are char-

acteristic of the teaching profession. We refer the Supreme

Court to a decision of the United States Court of Appeals

for the Seventh Circuit, subsequent to the subject case,

holding that a similar issue of due process was not fore-

closed as a matter of law but was remanded to the district

court for determination as to whether the public employees

in that case had a sufficient continuing interest in their

employment to require the application of due process pro-

cedures as set forth in Perry v. Sindermann: Mims v.

Board of Education, __. U. 8. ___. (Docket No. 72-1007,

November 10, 1972). To aid the Court we have attached

a copy of said decision to this Petition. We also note the

recent decision of a three judge panel in Kennedy v.

Sanchez, __ F. Supp. ____, 41 LW 2261 (N. D. Ill, October

24, 1972) applying the due process guaranties of the Fifth

Amendment to the Constitution of the United States in

holding that procedures for the termination of federal civil

service employees are unconstitutional in that they do not

provide for any procedure for a specification of reasons for

termination and hearing prior to the effective date that the

employee is severed from employment.

We therefore strongly urge the Supreme Court to grant

certiorari on the question we have presented. The heart of

—

FI 8 men bg oer ee core

10

Perry v. Sindemann is whether a public employee has a

reasonable expectation of continued employment. We urge

the Court to consider whether that standard should be based

solely upon whether or not the employee has obtained legal

tenure in the position or whether it is reasonable to look

at the surrounding circumstances. If Perry v. Sindermann

is going to have the most restrictive interpretation, then

as in the present case, the burden upon public employees re-

taining their employment and livelihood is so severely

hampered by the time and cost of litigation that the con-

stitutional rights expressed in Perry v. Sindermann and

in the subject decision of the Court of Appeals could well be

rendered functionally meaningless in their execution.

Respectfully submitted,

Gruisert A. CornFIELp,

Kuzman, Cornrretp & Fe_pman,

10 South LaSalle Street,

Suite 452,

Chicago, Illinois 60603,

Attorneys for Petitioners.

mad a a ae ede od Sn

APPENDIX.

Iy roe Unitep States Court or Apprais

For the Seventh Circuit

Chicago, Illinois 60604

November 10, 1972

Before

Hon. Lutuer M. Swycerr, Chief Judge.

Hon. Latuam Castiz, Senior Circuit Judge.

Hon. Wiavr F. Pew, Jr., Circuit Judge.

No. 72-1007 ,

Etmon Mims, Jom Nicxues, Doris

TayLtor, Miprep Wriiiams anpD

JERALDINE Woops, Appeal from the

Plaintiff s-Appellants, United States Dis-

trict Court for the

= Northern District

Boarp or Epucation or THe City or |_ Of Illinois, Eastern

Cuicaco, Josepx C. Murpny, f Division.

Frep Rosencarpey, Wruiam E.

Canim, Recrnatp Dvusors and me. TOO S088

Quentix J. Goopwrn, individually | James B. Parsons,

and as the President and Com- Judge.

missioners for the City of Chi-

cago Civil Service Commission,

Defendants-A ppellees.

Arevep Novemser 1, 1972

The plaintiffs brought this appeal from the dismissal of

their civil rights complaint for failure to state a claim upon

which relief could be granted. The plaintiffs, who were

A2

certified civil service employees of the defendant Board of

Education of the City of Chicago, alleged that the defend-

ants violated the equal protection and due process clauses

of the fourteenth amendment by discharging them without

a hearing while retaining male employees to do substan-

tially the same work. The only question on appeal is

whether the complaint properly stated a claim upon which

relief could be granted under 42 U. S. C. § 1983.

Plaintiffs were employed by the defendant Board of

Education in the Division of Visual Education and were

classified as ‘‘Film Serviceman I.’’ Defendant Fred Rosen-

garden was the director of this division and defendant

Joseph E. Murphy was the director of Civil Service Per-

sonnel for the Board of Education. Defendants William E.

Cahill, Reginald Dubois, and Quentin J. Goodwin are the

Commissioners of the City of Chicago Civil Service Com-

mission.

The complaint set out the following alleged facts. Plain-

tiffs were orally advised by Rosengarden ‘‘that they were

to be severed from their employment with the Board, effec-

tive June 26, 1970, because of a curtailment of available

funds in the Board’s Visual Education Program.’’ Sub-

sequent to that date, the plaintiffs received unconfirmed

information that although they were to be laid off, six male

employees in the same job classification who were not cer-

tified by the Civil Service Commission were to be retained.

The director of the plaintiffs’ union, Carmen Mendoza,

telegrammed Murphy, Cahill, as President of the Civil

Service Commission, and the president and superintendent

of the Board of Education. Mendoza stated that some em-

ployees in the Division of Visual Education were being

laid off while temporary employees were being retained in

violation of Tilinois statutes and civil service rules. Men-

doza requested that the situation be remedied immediately

and offered to appear before the defendants. In response

A3

0 the telegram, Murphy wrote a letter to Mendoza stating

hat the plaintiffs and six other female employees were to

pe laid off on June 26, 1970, and that six male employees

were to be ‘‘retained on a temporary basis.’’ Mendoza later

wrote a letter to Cahill demanding reinstatement of the

olaintiffs with no loss in pay since the plaintiffs were civil

service employees and were never given written notice of

their severance and the reasons for the lay off. The secre-

tary of the Civil Service Commission responded by letter

hat there was nothing that the Commission could do since

the employees were laid off due to lack of funds. This law

suit followed.

It is hornbook law that ‘‘[a] complaint is not subject to

jismissal unless it appears to a certainty that no relief can

be granted under any set of facts that can be proved in

support of its allegation.’ Our review is limited to the

four corners of the complaint.

Plaintiffs in this case have alleged that they were dis-

charged from their employment without a hearing while

other employees were retained in the same position. They

allege that this constituted a denial of due process of law.

In Perry v. Sindermann, 408 U. S. 593, 599 (1972), the

Supreme Court recently affirmed the remand of a case to

the district court to allow a state employed teacher the

»pportunity to prove that ‘‘the decision not to rehire him

somehow deprived him of an ‘interest’ in liberty or that ke

had a ‘property’ interest in continued employment.’’ The

Court held that if the teacher could establish that such an

interest had been created by state law, then he was entitled -

to a hearing concerning the nonrenewal of his contract.

Plaintiffs here purportedly were not given an opportunity

to establish whether they have a ‘‘property’’ interest in

-ontinned employment. If they can establish that they have

‘heen deprived of an interest that could invoke procedural

1. C. Wright. Law of Federal Courts § 68, at 285 (2d ed. 1970) ;

2A J. Moore. Federal Practice ¥ 12.08, at 2273-74 (2d ed. 1968).

" - “ ne ET ee SIE A Ae Tee eR

SS RTO NENEN ANTS STS TARR TET TS TS ‘ Sa

A4

due process protection,’’ then the fourteenth amendment

requires that they be given a hearing, Perry, 408 U. S. at

599.

The allegations in the complaint are that since the plain-

tiffs were civil service employees, they were entitled to

written notice of the charges and a hearing before being

discharged and these protections were not afforded them.’

Defendants argue that these protections do not apply if

the reason for the discharge is that the position has been

abolished or that there has been a reduction of funds.

Fitzsimmons v. O’Neill, 214 Ill. 494, 73 N. E. 797 (1905).

The nature of the plaintiffs’ ‘‘interest’’ in continued em-

ployment as well as the reason for discharge are questions

of fact to be determined at a hearing, not on a motion to

dismiss. The plaintiffs have sufficiently alleged a claim

that the defendants denied them their fourteenth amend-

ment right to procedural due process of law.

Plaintiffs have also alleged that they were laid off be-

cause they were women and that this action violated the

equal protection clause of the fourteenth amendment. This

allegation is sufficient to form a claim of a substantive dep-

rivation of a constitutional right to equal protection. Sex

like race, wealth, residency, or national origin, cannot

justify by itself the denial of the equal protection of the

laws to any person. Reed v. Reed, 404 U. S. 71 (1971)

8

ewe Ske Eee

iS LI TI LOTT

~

(sex); Sail’er Inn, Inc. v. Kirby, 5 Cal. 2d 1, 485 P. 2d

529, 96 Cal. Rptr. 329 (1971) (sex); Brown v. Bd. of Educa- ©

tion of Topeka, 347 U. 8. 483 (1955) (race); Harper v. |

Virginia Bd. of Elections, 383 U. S. 663 (1966) (wealth); |

Dunn v. Blumstein, 405 U. S. 330 (1972) (residency); —

Vick Wo v. Hopkins, 118 U. 8. 356 (1886) (national origin). |

The plaintiffs have stated a claim upon which relief

can be granted. Conley v. Gibson, 355 U. 8. 41, 45-46 (1957). °

It was error to dismiss their complaint. We accordingly ~—

reverse and remand the case for further proceedings.

2. Til. Rev. Stat., ch. 24, § 10-1-18.

A5

In tHe Unitep States Court or APPEALS

For the Seventh Circuit

Sepremsper Term, 1971 January Session, 1972

No. 71-1619 7

Inuinois State Empioyvees Union,

Councm. 34, American FeEpenra-

TION OF Srars, County AND “ee Do

MunicipaL EMPLoyEEs, AFL- trict Court for the

CIO, an unincorporated labor| goithern District

organization, et al., | of Illinois, South-

Plaintiffs-Appellants,| ern Division.

vs. No. 4743

JoHn W. Lewis, individually and Omer Poos, Judge

as Secretary of State of the

State of Illinois,

Defendant-A ppellee. )

ARGUED FeEsruary 29, 1972 — Decipep Sepremser 18, 1972

Before Kitey and Stevens, Circuit Judges, and Camp-

BELL,* District Judge.

Stevens, Circuit Judge. The question presented is

whether a public employee may be discharged for failing

to support the partisan political activities of his immedi-

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 until political

tradition—at least the patronage aspects of the ‘‘spoils’’

*Senior District Judge William J. Campbell of the Northern

District of Illinois is sitting by designation.

maeee ewe een Ta |

ae

A6

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.

I.

The individual plaintiffs were employed by the late

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

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 employment ;

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.e.,

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.2 The complaint predicated federal jurisdic-

1. Relying on this cireuit’s decisions in Roth v. 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 discharged

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 Re-

gents v. Roth, ........ * , 40 U. S. L. W. 5079 (June 29, 1972),

and vacated our judgment in Shirck, Thomas v. Shirck, ........ US.

sii , 41 U. S. L. W. 3003 (June 29, 1972). The Court held that

a non-tenured teacher had no Fourteenth Amendment ‘‘liberty’’ or

‘‘property’’ right to continued employment and was therefore not

entitled to a pretermination notice and hearing. The Court said

that to have a ‘‘property’’ interest in a benefit a person ‘‘must

have more than an abstract 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.’’ ........ ss: , 40

U. S. L. W. at 5082. One who takes a ‘‘patronage’’ job may not

even have an expectation of keeping it when the appointing officer

is replaced, let alone a ‘‘legitimate claim of entitlement’’ to such

RE ee Tae ey meme yortag:toretesene, ge cet

win ae? ce Fe ot rete ote her RP RR CI a la ET ee amenities od

nr BIBS IK 2 FAD IS LB Ie ETH PE v

A7

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

and sought relief reinstating plaintiffs to their jobs, award-

ing them back pay and enjoining future discharges of

other employees such as the plaintiffs.

Defendant filed a motion for summury 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

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

integrity.’’ We assume that the loss of a patronage job would

in no sense reflect adversely on the discharged employee’s reputa-

tion. 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 plaintiffs’ claim.

2. Specific 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 assure

safe custody, control or awareness of contracts, leases and other

important documents.

““(e) 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 limitation

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 mismap-

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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 in-

terrogatories to the defendant? and filed 94 affidavits of dis-

charged employees. Each affiant described his duties and

set forth facts tending to indicate that his job performance

was satisfactory and that his discharge had been politically

motivated.

Five of the affiants said that they had been contacted and

requested to change their affiliations to the Republican

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

aged 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 buildings

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.

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

_.. L 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. Febru-

ary 4, 1971. I was terminated from my job on the 5 day of

oo 1971. They gave me no reason why I was being let out.’’

. 396-397.

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that he would be able to keep his job if he joined the Re-

publican 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, Illinois, 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.

hs This was told to all members of the station at 4:30 P.M.,

at a meeting conducted by Mr. Hall, who said that we would

(? be replaced as soon as they acquired new employees (Re-

publicans).’”

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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 defendant’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 interrogatories (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 judge may

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

ment.? Nor should such a judgment be entered until the

F party opposing the motion has had a fair opportunity to

conduct such discovery as may be necessary to meet the

5. A. 409.

6. A. 454.

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

The five affidavits specifically reciting that the employees were re-

¥ quested to change their affiliation to the Republican Party are

sufficient, in our opinion, to create a genuine issue of material fact.

The district court might have considered the issue ‘‘i

immaterial’’

on the theory that plaintiffs would have no claim even if they had

been discharged for ‘‘political’’ reasons. Since we reject that

theory, summary judgment was inappropriate.

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factual basis for the motion.* It is especially important

to observe these procedural requirements when evidence

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

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Similarly here, we simply decide that these interrogatories should

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

ment motion.

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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

because they are Democrats, and that, in at least some

instances, 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.

II.

There are three objections to our consideration of this

issue 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 Mlinois; 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

former employer does not present the kind of ‘‘political

question’’ that is nonjusticiable.”*

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

Supreme Court has decided that certain kinds of issues

are unfit for federal judicial determination. In situations

in which the Court recognized the paramount interest in

10. The scope of the ‘‘political question’’ doctrine is exhaus-

tively reviewed both in Mr. Justice Brennan's opinion for the

Court and in Mr. Justice Frankfurter’s famous dissent in Baker

v. Carr, 369 U. 8. 186, 208-237, 280-301, 330.

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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 Indian

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 ac-

cord finality to a decision to dismiss an employee for an

impermissible reason, or to a policy of discrimination

against members of a particular race, religion, or political

faith in the award or withholding of public benefits. Nor

is there any lack of judicially manageable standards in

eases of this kind. The motivation for the dismissal of

state employees was the critical issue in a wide range of

eases which the Supreme Court has routinely treated as

justiciable. The underlying rationale for the ‘political

question’’ doctrine plainly has no application to this case

Of course the word ‘‘political’’ may be applied to sev-

eral facets of this dispute. The plaintiffs may have ac-

11. Summarizing its review of the principal political question

eases in Baker v. Carr, the Court stated :

We have no question decided, or to be decided, by a political

branch of government coequal with this Court. Nor do we risk

embarrassment of our government abroad. or grave disturbance

ality of her action here challenged. Nor need the appellants,

in order to succeed in this action, ask the Court to enter upon

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quired their jobs for ‘‘political’’ reasons; they seek to

vindicate a ‘‘political’’ right; the outcome of the litigation

will have ‘‘political’’ consequences ; and, perhaps of great-

est significance, defendant’s alleged employment practices ]

are supported by ancient and respected ‘‘political’’ tradi-

tion. But, as Mr. Justice Holmes so aptly stated, an

‘‘objection that the subject matter of the suit is political

is little more than a play upon words. Of course, the peti-

tion concerns political action, but it alleges and seeks to

recover for private damage. That private damage may

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for in a suit at law hardly has been doubted for over two

hundred years, ....”’ Nizon 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

v. Carr, 369 U. S. at 330 (Mr. Justice Frankfurter, dis- ;

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

service system upon the State of Illinois. 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-

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

12. See, e.g., the Illinois Personnel Code, 127 Smith-Hurd III.

Stat. Anno. § 63b101-63b119.

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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. 8. _.., 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 judicial review.”*

There is no merit to the argument that 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.

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

Supreme Court concluded that a non-tenured teacher had no ‘‘lib-

erty’’ or ‘‘property”’ interest in his job and was therefore not

entitled to a ‘‘due process’’ hearing before being denied a contract

renewal. But on the same day the Court recognized that, com-

pletely independent of a protected interest in the job, a teacher had

a First Amendment right—an aspect of ‘‘liberty’’ in the Four-

teenth Amendment—which could not be abridged by the imposition

of a penalty of job forfeiture for its exercise. Perry v. Sindermann,

4. , 40 U. S. L. W. 5087 (June 29, 1972).

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1971), cert. denied, 404 U. S. 1020.* 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. 8. 918; Adler v. Board of Education,

342 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

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

Education is more relevant than the preceding doctrine

which is now ‘‘universally rejected.’’*

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 theretofore; 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

acceptance, the constitutional attack on racial discrimination would,

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

of the City of Chicago, come (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.

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 premised 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 polit-

ical 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:

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We therefore abjure argument founded only on political

tradition in the State of Illinois or on notions of policy

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

service system; such arguments are properly the concern

of the General Assembly of the State of Illinois. Our con-

cern is with the First Amendment rights of a citizen

named Perry whose sovereign offered him a choice be-

tween professing 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-

eanse he made the wrong choice, has any right protected

by the First Amendment been abridged? We think the

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

Appeals for the District of Columbia Circuit held that public

as Mr. Jusmice Buackmun wrote for the Court only last year,

‘this Court now has rejected the concept that constitutional

rights turn upon whether a governmental benefit is charac-

terized as a ‘right’ or as a ‘privilege.’ Graham v. Richardson,

. S. 365, 374. See, e.g., Morrissey v. Brewer, ........ U. S.

Lwwwvy ey Bell v. Burson, 402 U. S. 535, 539; Goldberg v.

Kelly, 397 U. S. 254, 262; Shapiro v. Thompson, 394 U. S. 618,

| = , 40 U. S. L. W. 5079, 5081 n. 9.

The significance of the demise of Bailey v. Richardson is especially

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.

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 prac-

tices 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.

26 TEFL SEAL RAST 1 LEMP, EN

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Supreme Court has answered this question for us in rather

plain language.

III.

In 1949 a closely divided Supreme Court upheld a stat-

ute prohibiting federal civil service employees from taking

an active part in partisan political activities. United

Public 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-

ever, concluded that the government’s interests in not

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 limita-

tion 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 Justices’ differ-

ent conclusions stemmed from their different appraisals

of the sufficiency of the justification for the restriction.

That justification—the desirability of political neutrality

18. In dissent, Mr. Justice Black stated :

‘*To punish millions of employees and to deprive the nation of

their contribution to public affairs, in order to remove tempta-

tion 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 assump-

tion of the First Amendment. That Amendment, unless I mis-

understand its meaning, includes a command that the Govern-

ment must, in order to promote its own interest, leave the

people at liberty to speak their own thoughts about 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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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 case. 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 against acting as ward leader or

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

In 1952 the Court quoted the 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.S.

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

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

pact of the requirement on the citizen’s First Amendment

rights.7. We think it unlikely that the Supreme Court

20. 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 concurring 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.

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would consider these plaintiffs’ interest 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 in-

terest in maintaining the security of the military installa-

tion outweighed the cook’s interest in working at a par-

ticular location. Again, however, the Court explicitly as-

sumed that the sovereign could not deny employment for

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 a Method-

ist.’’ 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 ‘‘have

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-

“*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 public assembly is

still more dangerous. This means that individuals are guar-

anteed an undiluted and unequivocal right to express them-

selves on questions of current public interest. It means that

Americans discuss such question as of right and not on suffer-

ance of legislatures, courts or any other governmental agen-

eies.’’ 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 re-

affirmed the proposition ‘‘that the right of association is specifically

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

A20

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-

ployment 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 v. Sin-

demamn, .......... _ Se , 40 U. S. 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 for any number

of reasons, there are some reasons upon which the

government may not act. It may not deny a benefit

to a person on a basis that infringes his constitution-

ally protected interests—especially, his 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

v. Randall, 357 U. 8S. 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

IIPS IU FR ES IE PE RRS TARR RN

A21

v. Updegraff, 344 U. S. 183, 192; S#elton 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. S. 54; United States v. Robel, 389 U. S. 258;

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

We have applied the principle regardless of the public

employee’s contractual or other claim to a job. Com-

pare 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... .’’

cae U.S. at........., 40 U. 8. L. W. at 5088-5089.

This circuit 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 citizen’s right to engage in protected expres-

sion or debate is substantially unaffected by the fact

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 574, 88 S. Ct. 1731. To

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 constitution-

ally 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).

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A22

And more recently Judge Hastings succinctly stated ‘‘that

public employment may not be conditioned upon the sur-

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

abana F, 2d ......... (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 v.

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

tify 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 polit-

ical 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

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

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

23. 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-workers ;

(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 perform-

ance of his daily duties; (5) statements so without foundation

as to call into question his competency to perform the job; and

(6) a close and personal working relationship between the em- —

ployee and supervisor which called for personal loyalty and

eonfidence.’’ .... F. 2d at .... (slip opinion, at p. 9).

Chief Judge Swygert, in dissent stated :

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

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

DPC ER Ip Rage were RRR me ene Mote: ee nl

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A23

cedural matter, the burden of establishing such justifica-

tion rests upon the defendant. In view of the importance

which the Court has consistently attached to the First

Amendment rights of the citizenry, that burden is a heavy

one. Without such justification, the foregoing cases dem-

onstrate that plaintiffs have alleged an impermissible basis

for their discharge. We must therefore consider the 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

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

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 balance of com-

peting interests must be struck. ‘The problem in any case is

to arrive at a balance between the interests of the . . . [em-

ployee], as a citizen, in commenting upon matters of public

concern and the interest of the State, as an employer, in pro-

moting the efficiency of the public services it performs through

its employees.’ Id. 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 vital-

ity : ‘When his... [the employee’s] speech is disruptive 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 other-

wise would enable governmental employees to practice the

rankest form of insubordination and safely hide behind the

right of free speech.’’’ .... F. 2d at .... (slip opinion at

p. 14).

and Municipal Employees (AFL-CIO) v. Shapp, 280 A.

2d 375, 378 (1971); (2) political affiliations may be a rele-

vant and proper qualification for certain positions; and

(3) in all events, effective administration of departments

judicial assumptions about the circumstances attending |

their respective employment. The particular factual basis

for a waiver defense may vary as between different plain-

tiffe and different job classifications, and may, at best,

ee eee

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supervision of his employees. The fectend o*

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 position asserted by defendant, or

at least to impeach his justification in particular instances.

The legal proposition that the State has a strong in-

terest in allowing its executives to exercise broad discre-

that the State’s interest in the efficient administration of —

its affairs justifies a rule of law which would defeat all

ease is so large. It is therefore not frivolous to suggest

26. See note 23, supra.

Thus, reflection persuades us that in the long run the

State’s strong interest in efficient management is at least

consistent with, and may well favor, the recognition and

protection of the constitutional rights asserted in this case.

Of greater significance is the fact that as the number

of employees affected is increased, the importance of

preserving their First Amendment freedoms likewise

grows. Indeed, when numbers are considered, it is ap-

propriate not merely to consider the rights of a particular

County and Municipal Employees v. Shapp, 280 A. 2d 375, 378.

The Supreme Court's comment in Ez Parte Curtis about a require-

ment that a public employee contribute private funds to a political

campaign would apply equally to a requirement that he contribute

services :

‘“*A feeling of independence under the law conduces to faith. _

ful public service, and nothing tends more to take away 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 request may

yb pm Ly he dp Mngeomscig pdt yrongey ame |

be treated by those having the power of removal as a

of some supposed duty, growing out of the political relations

of the parties. Contributions secured under such circum-

stances 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

authority to contribute from “their personal income to the

expenses of political campaigns, and a refusal may lead to

putting 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-

erease of compensation may be required to provide the means

to make the contribution, and that in this way the government

itself may be made to furnish indirectly the money to defray

the expenses of keeping the political party in power that

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).

es teal a Sk ae a oh i a et te i a

janitor who may have been offered a bribe from the public

treasury to obtain his political surrender, but also the im-

pact on the body politic as a whole when the free political

choice of millions of public servants is inhibited or manipu-

lated by the selective award of public benefits. While the

patronage system is defended in the name 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

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 preseribing active support of the Republican Party as a

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.

Campsei., 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,

I must, for such a result is dictated by the sweeping hold-

ing of the Supreme Court in Perry v. Sindermann, _.

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

Sinderman 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 affiliations or activities. Rather,

the plaintiff there, a state college teacher, claimed that his

employment 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 Keyishian v. Board of Regents, 385 U. S. 589,2 and

Pickering v. Board of Education, 391 U.S. 563, and could

1. Although my remarks are confined to the First Amendment

—< ~ + hong I agree fully with Judge Stevens that

one St "s decision in Board of Regents v. Roth,

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

, ‘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

merely to the teachers concerned. That freedom is therefore

a special concern of the First Amendment, which does not

cd over the classroom.’’

at .

i

A31

have been decided, in my view, within the framework of

such precedents. However, the language. of Sinderman is

not so circumscribed but appears far-reaching and mani-

festly unequivocal. 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. 8. _., 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 Em-

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

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

cise 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 sup-

port another, and that such discharge violated their First

Amendment rights of free association. Both Alomar and

Shapp were decided within a year prior to Sindermann.

Indeed the Supreme Court without a dissenting voice de-

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

1%

A RD

es o

Ot Crys

A32

months prior to that Court’s decision in Sindermann,

Alomar v. Dwyer, 404 U. S. 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 de-

cisions, 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 vy.

Elrod, . F. Supp. .... (No. 71 C 607, N. D. Ill, 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 em-

ployees who refused to become Democrats. And in Shak-

man v. Democratic Organization of Cook County, .

F. Supp. ... (No. 69 C 2145, N. D. Ill, July 28, 1972),

Judge Marovitz held, in reliance upon Alomar and Burns,

that, ‘‘political considerations in public employment are

only forbidden where those considerations affect voter-

candidate-taxpayer rights and in all other respects patron-

age employees may be hired or fired based on political —

>

affiliation.’’ (Slip Opinion, p. 20.) j

2

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 ©

3

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

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

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

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

COPY BCUND TOO Cl

——

A33

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 claim

in the federal district court by simply alleging (as plain-

tiffs 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 ‘‘because 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

department! Considering that there are thousands of state,

county and municipal employees not covered by civil

service, and that changes of political administration occur

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 per-

sonnel. 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 distinction be judicially drawn? What about a

janitorial supervisor, the director of a stenographic pool,

a personnel manager, a deputy assistant division head,

a deputy director, or even a secretary to a top-echelon

LP AS OR~ wh —

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—— ——— LTS OER IP IT

29SE IN CENTER

Reece et Toc iii

G8 Re TAS EA RAT A TE EE EN RL AS

A34

director or department head who may have access to con-

fidential 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 what-

ever 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 work-

able judicial standard for distinguishing 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 govern-

mental 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

application of the burden of proof standard. It goes with-

out saying, of course, that the burden belongs to and re-

mains with the dismissed employee. It seems equally

clear that since a civil service system may not be judi-

cially imposed upon a state or local government, that a

public employer cannot be compelled to explain the rea-

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

‘“*non-policy making employee’’, another problem comes to the

surface that is equally perplexing and is of constitutional dimen-

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

charged for exercising his First Amendment rights of free political

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

that some employments are entitled to greater constitutional pro-

tection 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 imposing a ‘“‘sliding

seale’’ of importance upon the constitutional rights of individuals

according to their rank, title, job description or duties, whether

in or out of government.

Sa Ce a a age SS kc a an RO rk EN a Sema orem ee

COPY BCUND TOO <¢

Sel IS ee a

Bas ‘ r TRS OS ET PEPIN

A35

sons 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,

aol U.S. ........., 40 U. S. L. W. 5079 (June 29, 1972). Thus,

if a public employer desires to stand silent by way of a

general denial to the employees’ allegations, the employee

must demonstrate By the clear and convincing weight of

the evidence that his dismissal resulted solely because

of his political associations. Such a burden is a heavy

one but in my view is necessitated by the limited nature

of the right Sindermann compels us to recognize today—

ie., 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 Sindermann, 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 Circuit 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, .......... U.S. ........... 40 U. S. L. W.

5079, 5081 (June 29, 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 U. S. 918

(1950), upon which the court in Alomar relied in deciding

that ‘‘the sole protection for government employees who

1. Plaintiffs were non-civil service employees specifically exempt

from the Illinois Personnel Code. See Sm. Hurd Ann. Stat. ch. 127,

§ 63b104e(2) (Cum. Supp. 1972). ae

-_CSE IN CENTER

A36

have been dismissed for political reasons must be found

in civil service statutes or regulations.’’ Alomar, supra

at 483. Judge Campbell’s concurrence 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 in the Supreme

Court’s footnote 9 in the Roth decision.

I am persuaded by the decision in Alomar. In my opin-

ion, 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 decisions, not to

the First Amendment decision, in Batley. He broadens

the scope of the footnote by quoting Justice Blackmun’s

remark 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 ‘priv-

ilege.’’’? 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, i 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, 391

U. S. 563 (1968), and Sherbert v. Verner, 374 U. S. 398

(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

COPY BCUND TOO C

A37

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 sur-

render a right which he would be entitled to exercise as

a private citizen. It is the implementation of the doctrine

that results in the ‘‘rejection’’ of the ‘‘right’’ v. ‘‘priv-

ilege’’ dichotomy where First Amendment issues are

involved.

The unconstitutional conditions doctrine has what Pro-

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

SE Te. NL ee oe

Seon eegtes

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.

PR QR Lee NI SR

IONE

It is this ‘‘flaw’’ that is implicitly recognized in Bailey’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:

‘It 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 dismissal

was premised upon alleged political activity * * *

But the plain hard fact is that so far as the Constitu-

tion is concerned there is no prohibition against the

dismissal of Government employees because of their

political beliefs, activities or affiliations.’’ Alomar v.

Dwyer, 447 F. 2d 482, 483 (2nd Cir. 1971), citing Batley

v. Richardson, 182 F. 2d 46, 59 (D. C. Cir. 1950), aff’d,

per curiam, 341 U. S. 918 (1950).

OE TIENEN SE EFC SNIP ROME NRT TS Sa alga ake ae Pee

O CLOSE IN CENTER