Wilbur v. Mahan, 92-3379

• Decision Date: 23 August 1993
• Docket Number: No. 92-3379,92-3379
• Citation: 3 F.3d 214
• Parties: Roy WILBUR, Plaintiff-Appellant, v. Charles L. MAHAN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 214

3 F.3d 214

8 Indiv.Empl.Rts.Cas. 1377

Roy WILBUR, Plaintiff-Appellant, v. Charles L. MAHAN, Defendant-Appellee.

No. 92-3379.

United States Court of Appeals Seventh Circuit.

Argued May 13, 1993.

Decided Aug. 23, 1993.

Jeffrey B. Rock (argued), Hasselberg & Rock, Peoria, IL, for plaintiff-appellant.

Edward T. Graham, Jr. (argued), Hershey, Beavers, Periard & Graham, Frank B. Schweitzer, Taylorville, IL, for defendant-appellee.

Before CUMMINGS, POSNER, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

This case arises at the intersection of two lines of free-speech decisions. One concerns the right of public officials to hire or fire an employee on the basis of his affiliation with a political party or faction. The other concerns their right to discipline an employee who speaks out on a matter of public significance in a way displeasing to them. Sheriff Mahan of Christian County, Illinois, decided to run for reelection in the November 1990 election. In August 1989 Deputy Sheriff Wilbur announced his candidacy for the office of sheriff. He declared that if elected he would delegate more authority to the deputy sheriffs; Mahan, according to Wilbur, ran the office as a one-man band. Both Mahan and Wilbur are Democrats. About a week after Wilbur announced his candidacy, Mahan amended the regulations of the sheriff's office to provide that any employee who ran for sheriff could be placed on unpaid leave of absence until the election. The regulation, effective September 1, 1989, was made applicable to Wilbur on December 16, almost a year before the election. He claims without contradiction that because the deputy's job was his only source of income his ability to campaign was crippled by the application of the new regulation to him; he must not have been able to raise substantial campaign contributions. He claims again without contradiction that between the time he declared his candidacy and the time he was forced to go on unpaid leave he did not discuss politics or campaign during hours when he was on duty and his candidacy and campaigning did not disturb the operations of the office in the slightest. We assume that Wilbur lost the election and returned to his deputy's job, although the record is curiously silent on these points. His suit, brought under 42 U.S.C. Sec. 1983, seeks among other things to recover the wages that he lost as a result of his unpaid leave of absence.

The district judge granted summary judgment for the defendant. Yet at first blush the facts we have recited present a blatant case of retaliation for the exercise of the right of free speech. Wilbur was critical of how a public official, the sheriff, was performing his job. The sheriff punished Wilbur by taking away his salary. Given the state of the record, severely incomplete as it well may be, we must assume that the new regulation, empowering the sheriff to remove a deputy or other employee of his office who runs for election as sheriff, was aimed at deterring Wilbur from running, crippling his campaign by reducing his income, punishing him for his effrontery in running against the sheriff, and silencing or muting his criticisms of that official--criticisms that constituted the message of Wilbur's campaign. The right to criticize public officials is at the heart of the First Amendment's right of free speech, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and punishments far less severe than taking away the critic's income have been held to infringe the right. Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982). A subordinate of a public official is, moreover, ideally situated to be an effective critic of the official. Being an insider, the subordinate acquires knowledge about the intimate operation of the office at far lower cost than an outsider could do. Mahan has as yet made no effort to show that Wilbur's candidacy and campaign interfered with the efficient operation of the sheriff's office or would have done so had Wilbur remained in his deputy sheriff's job throughout the campaign.

There was a time when by virtue of accepting public employment an individual surrendered his right of free speech. "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." McAullife v. Mayor & Board of Aldermen, 155 Mass. 216, 29 N.E. 517 (1892) (Holmes, J.). That time is long past. Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972); Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968). It is true that public employees do not have as broad a right of free speech as they would if they were merely critics and not also employees of government. (1) A public employee disciplined for making a statement that is not a public comment on issues of public significance has no remedy under the First Amendment. Connick v. Myers, 461 U.S. 138, 146, 149, 103 S.Ct. 1684, 1689-90, 1691, 75 L.Ed.2d 708 (1983); see also Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 2897, 97 L.Ed.2d 315 (1987). (2) An employee's statement that would be protected if made by a person not employed by the public agency is not privileged if it is likely to disrupt the efficient operation of the agency. Id. at 384, 107 S.Ct. at 2897; Connick v. Myers, supra, 461 U.S. at 149-51, 103 S.Ct. at 1691-92; Pickering v. Board of Education, supra, 391 U.S. at 568, 88 S.Ct. at 1734. (3) States can adopt counterparts to the federal Hatch Act, Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), which requires a civil servant who wants to run for office to resign from the civil service. 5 U.S.C. Sec. 7324(a)(2). The first limitation is not involved in this case, however. As for the second, the defendant has presented, as we have said, no evidence of actual or probable disruption. As for the third, the defendant does not rely on the "baby Hatch Act" cases, perhaps because Illinois does not have a baby Hatch Act. He could we suppose argue that his own regulation empowering him to place any employee who runs for sheriff on unpaid leave of absence is itself a baby Hatch Act, entitled to the same deference as a state statute would be, since ordinarily the federal courts do not concern themselves with the level within state government at which an action claimed to violate the federal Constitution originates. Falls v. Town of Dyer, 875 F.2d 146, 147 (7th Cir.1989); Menora v. Illinois High School Ass'n, 683 F.2d 1030, 1036 (7th Cir.1982); DeMallory v. Cullen, 855 F.2d 442, 453-54 (7th Cir.1988) (dissenting opinion). He does not make the argument, perhaps because it would be rather a stretch of the Hatch Act cases to interpret them as authorizing a public official selectively to apply a "resign to run" provision to his political enemies. The regulation at issue is permissive, not mandatory. No doubt it would always be invoked by a sheriff who planned to run for reelection; but he might not be planning to run, and in that event might invoke the regulation only against a deputy of whose views he disapproved.

In granting summary judgment for Mahan, the district judge relied primarily on decisions that limit, also in the name of the First Amendment, the right of government officials to base personnel decisions on party affiliation. Elrod v. Burns, 427 U.S. 347 (1976) (plurality opinion), 367, 96 S.Ct. 2673, 2687, 49 L.Ed.2d 547; Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Soderbeck v. Burnett County, 752 F.2d 285, 288 (7th Cir.1985). It may seem paradoxical that decisions which limit the powers of government should be invoked in defense against a suit claiming an infringement of free speech. But those decisions contain an exception for the situation in which the public employee or job applicant occupies or seeks an office having a confidential character (as in the case of a personal secretary or personal assistant, for example), a policymaking function, or some other characteristic that would make party affiliation a reasonable job qualification. Elrod v. Burns, supra, 427 U.S. at 367, 96 S.Ct. at 2687; Branti v. Finkel, supra, 445 U.S. at 518, 100 S.Ct. at 1294-95; Upton v. Thompson, 930 F.2d 1209, 1213-16 (7th Cir.1991); Tomczak v. City of Chicago, 765 F.2d 633, 640 (7th Cir.1985); Soderbeck v. Burnett County, supra, 752 F.2d at 288; Livas v. Petka, 711 F.2d 798, 800 (7th Cir.1983). A public agency would be unmanageable if its head had to appoint or retain his political enemies, or if that is too strong members of the opposite party--or for that matter members of no party, neither enemies nor friends--in positions of confidence or positions in which they would be making policy or, what amounts to the same thing, exercising discretion in the implementation of policy. He could not trust the occupants of the confidential positions to keep his secrets or the occupants of the policymaking positions to carry out his policies with fidelity and diligence.

Upton v. Thompson, supra, holds that deputy sheriffs in Illinois are policymakers within the meaning of these decisions because they exercise significant discretion (more than that of an ordinary policeman) in the performance of their duties. From this the district judge inferred that once a public employee is put into the confidential-assistant or policymaker slot, he loses his right of free speech. That may have been too big a leap. The decisions in which the confidential-assistant and policymaker exceptions were created and have been applied involved (or were assumed to involve or treated as involving) situations in which the employee was complaining that he had lost or had failed to get a job because he was not a member of the employer's political party. They are cases about patronage hiring--about the spoils system. The exceptions we have sketched reflect a recognition that some patronage hiring may be essential...