473 F.2d 561 (7th Cir. 1972), 71-1619, Illinois State Employees Union, Council 34, Am. Federation of State, County and Municipal Employees, AFL-CIO v. Lewis

Docket Nº:71-1619.
Citation:473 F.2d 561
Party Name:ILLINOIS STATE EMPLOYEES UNION, COUNCIL 34, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, an unincorporated labor organization, et al., Plaintiffs-Appellants, v. John W. LEWIS, individually and as Secretary of State of the State of Illinois, Defendant-Appellee.
Case Date:September 18, 1972
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 561

473 F.2d 561 (7th Cir. 1972)

ILLINOIS STATE EMPLOYEES UNION, COUNCIL 34, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, an unincorporated labor organization, et al., Plaintiffs-Appellants,

v.

John W. LEWIS, individually and as Secretary of State of the State of Illinois, Defendant-Appellee.

No. 71-1619.

United States Court of Appeals, Seventh Circuit.

Sept. 18, 1972

Argued Feb. 29, 1972.

Certiorari Denied Feb. 20, 1973.

See 93 S.Ct. 1364, 1370.

Page 562

[Copyrighted Material Omitted]

Page 563

Gilbert A. Cornfield, Chicago, Ill., for plaintiffs-appellants.

Don H. Reuben, Lawrence Gunnels, James C. Munson, Steven Handler, Robert A. Tingler, Asst. Atty. Gen., Chicago, Ill., Waldo Ackerman, Asst. Atty. Gen., Springfield, Ill., for defendant-appellee.

Before KILEY and STEVENS, Circuit Judges, and CAMPBELL, [*] 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 immediate 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law that such a reason is sufficient until political tradition-at least the patronage aspects of the "spoils" system-is superseded by appropriate legislation.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 employees, 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. 1 The complaint

Page 564

predicated federal jurisdiction upon the Civil Rights Act of 1871, 42 U.S.C. § 1983, and sought relief reinstating plaintiffs to their jobs, awarding them back pay and enjoining future discharges of other employees such as the plaintiffs.

Defendant filed a motion for summary judgment. The motion was supported by defendant's affidavit describing in detail conditions of widespread inefficiency and confusion which he found to exist in the Secretary of State's Office when he was appointed. 2 Defendant's affidavit stated that "the efficiency of the office was at such a low ebb that in order to protect the public and to prevent a total breakdown 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 interrogatories to the defendant 3 and filed 94 affidavits of discharged 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.

Page 565

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, 4 and was told by his supervisor, Mr. Reed, that he would be able to keep his job if he joined the Republican Party. Affiant Betty Jean Sikes swore that she "was approached by Mr. W. Estes of the Republican Party-Who filled out a paper-and said I would be retained in my present position but I would have to vote Republican." 5 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. This was told to all members of the station at 4:30 P.M., at a meeting conducted by Mr. Hall, who also said that we would be replaced as soon as they acquired new employees (Republicans)." 6

The district court entered summary judgment for defendants and also entered "findings of fact" and conclusions 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 may not resolve issues of fact on a motion for summary judgment. 7 Nor should such a judgment be entered until the party opposing the motion has had a fair opportunity to conduct such discovery as may be necessary to meet the factual basis for the motion. 8 It is especially important to

Page 566

observe these procedural requirements when evidence of motivation is of critical importance. 9 To the extent, therefore, that the district court's decision is predicated on a rejection of plaintiffs' version of the facts, it plainly cannot stand.

We, of course, do not decide that plaintiffs' version of the facts is the correct one. But since there has been no trial, in order to test the legal sufficiency of their claims, we must assume that they can prove their case. Thus, our analysis of the law assumes that plaintiffs were performing their jobs competently, that they have no responsibility 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 Illinois; and (3) that a tradition of almost 200 years of uninterrupted acceptance of the "patronage system" may not be overcome by judicial fiat.

1. This controversy between the plaintiffs and their former employer does not present the kind of "political question" that is nonjusticiable. 10

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 attributing finality to determinations by the political departments of the federal government-as in matters dealing 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 nonjusticiable. In those cases the Court has also stressed the absence of judicially manageable standards for resolving the dispute or fashioning appropriate relief. 11

Page 567

It is well settled that our duty to accord appropriate respect to a state's sovereignty does not require us to accord finality to a decision to dismiss an employee for an impermissible reason, or 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 cases of this kind. The motivation for the dismissal of state employees was the critical issue in a wide range of cases which the Supreme Court has routinely treated as justiciable. The underlying rationale for the "political question" doctrine plainly has no application to this case.

Of course the word "political" may be applied to several facets of this dispute. The plaintiffs may have acquired their jobs for "political" reasons; they seek to vindicate a "political" right; the outcome of the litigation will have "political" consequences; and, perhaps of greatest significance, defendant's alleged employment practices are supported by ancient and respected "political" tradition. 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 petition concerns political action but it alleges and seeks to recover for private damage. That private damage may be caused by such political action and may be recovered for in a suit at law hardly has been doubted for over two hundred years, . . . ." Nixon v. Herndon, 273 U.S. 536, 540, 47 S.Ct. 446, 71 L.Ed. 759. 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, 82 S.Ct. at 771 (Mr. Justice Frankfurter, dissenting).

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

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120 practice notes
  • 304 B.R. 844 (Bkrtcy.N.D.Ill. 2004), 00-B-37405, In re Outboard Marine Corp.
    • United States
    • Federal Cases United States Bankruptcy Courts Seventh Circuit
    • 29 Enero 2004
    ...for summary judgment.' " Ill. State Employees Union, Council 34, Am. Fed'n of State, County & Mun. Employees, AFL-CIO v. Lewis, 473 F.2d 561, 566 (7th Cir.1972) (citation omitted). " 'It is incumbent upon the party seeking answers to demonstrate that his inquiry is directed to......
  • 597 F.2d 1027 (5th Cir. 1979), 77-1873, Stegmaier v. Trammell
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 2 Julio 1979
    ...is a matter of proof, or at least argument, directed at particular kinds of jobs." Illinois State Employees Union v. Lewis, 473 F.2d at 574. Since, as we have noted, it is the government's burden to demonstrate an overriding interest in order to validate an encroachment on protected in......
  • 829 F.2d 1387 (7th Cir. 1987), 85-1870, Shakman v. Dunne
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • 5 Agosto 1987
    ...from political activity), cert. denied, 454 U.S. 1165, 102 S.Ct. 1042, 71 L.Ed.2d 323 (1982); Illinois State Employees Union v. Lewis, 473 F.2d 561 (7th Cir.1972) (discussing politically-motivated firing), cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973); Rutan v. Republican......
  • 979 A.2d 229 (Md.App. 2009), 328, Maryland Dept. of Transp. v. Maddalone
    • United States
    • Maryland Court of Special Appeals of Maryland
    • 31 Agosto 2009
    ...(4th Cir.1974), cert. denied, 420 U.S. 1005, 95 S.Ct. 1448, 43 L.Ed.2d 763 (1975); Illinois State Employees Union Council 34 v. Lewis, 473 F.2d 561, 573 (7th Cir.1972); A.F.L. v. Shapp, 443 Pa. 527, 280 A.2d 375 (1971)). In other words, a person who was hired into government employment in a......
  • Free signup to view additional results
118 cases
  • 304 B.R. 844 (Bkrtcy.N.D.Ill. 2004), 00-B-37405, In re Outboard Marine Corp.
    • United States
    • Federal Cases United States Bankruptcy Courts Seventh Circuit
    • 29 Enero 2004
    ...for summary judgment.' " Ill. State Employees Union, Council 34, Am. Fed'n of State, County & Mun. Employees, AFL-CIO v. Lewis, 473 F.2d 561, 566 (7th Cir.1972) (citation omitted). " 'It is incumbent upon the party seeking answers to demonstrate that his inquiry is directed to......
  • 597 F.2d 1027 (5th Cir. 1979), 77-1873, Stegmaier v. Trammell
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 2 Julio 1979
    ...is a matter of proof, or at least argument, directed at particular kinds of jobs." Illinois State Employees Union v. Lewis, 473 F.2d at 574. Since, as we have noted, it is the government's burden to demonstrate an overriding interest in order to validate an encroachment on protected in......
  • 829 F.2d 1387 (7th Cir. 1987), 85-1870, Shakman v. Dunne
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • 5 Agosto 1987
    ...from political activity), cert. denied, 454 U.S. 1165, 102 S.Ct. 1042, 71 L.Ed.2d 323 (1982); Illinois State Employees Union v. Lewis, 473 F.2d 561 (7th Cir.1972) (discussing politically-motivated firing), cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973); Rutan v. Republican......
  • 979 A.2d 229 (Md.App. 2009), 328, Maryland Dept. of Transp. v. Maddalone
    • United States
    • Maryland Court of Special Appeals of Maryland
    • 31 Agosto 2009
    ...(4th Cir.1974), cert. denied, 420 U.S. 1005, 95 S.Ct. 1448, 43 L.Ed.2d 763 (1975); Illinois State Employees Union Council 34 v. Lewis, 473 F.2d 561, 573 (7th Cir.1972); A.F.L. v. Shapp, 443 Pa. 527, 280 A.2d 375 (1971)). In other words, a person who was hired into government employment in a......
  • Free signup to view additional results
2 books & journal articles
  • The freedom of speech.
    • United States
    • Yale Law Journal Vol. 102 Nbr. 6, April 1993
    • 1 Abril 1993
    ...is actually at war with the deeper traditions of democracy embodied in the First Amendment. Illinois State Employees Union v. Lewis, 473 F.2d 561, 576 (7th Cir. 1972). (118.) 112 S. Ct. at 2542. (119.) See, e.g., Texas v. Johnson, 491 U.S. 397, 406 (1989) (expressive conduct may be regulate......
  • Implicit redefinitions, evidentiary proscriptions, and guilty minds: intoxicated wrongdoers.
    • United States
    • University of Pennsylvania Law Review Vol. 146 Nbr. 1, November 1997
    • 1 Noviembre 1997
    ...of course, have been doomed to failure.'" (citation omitted) (footnote omitted) (quoting Illinois State Employees Union v. Lewis, 473 F.2d 561, 568 n.14 (7th Cir. 1972) (citation omitted))). (108) 274 U.S. 200, 207 (1927) (Holmes, J.). (109) See Stephen Jay Gould, Carrie Buck's Daughte......