Newcomb v. Brennan

Citation558 F.2d 825
Decision Date11 July 1977
Docket NumberNo. 77-1006,77-1006
PartiesJames NEWCOMB, Plaintiff-Appellant, v. James BRENNAN and Henry Reuss, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Robert E. Sutton, Milwaukee, Wis., for plaintiff-appellant.

Robert H. Friebert, Patrick B. McDonnell, Asst. City Atty., Milwaukee, Wis., for defendants-appellees.

Before SWYGERT and CUMMINGS, Circuit Judges, and MARKEY, Chief Judge. 1

SWYGERT, Circuit Judge.

Plaintiff James Newcomb contends that his constitutional rights were violated when he was dismissed from his position as deputy city attorney of Milwaukee, Wisconsin. Newcomb was dismissed when, against the wishes of the city attorney, he announced his intention to run for Congress. We affirm the district court's dismissal of the complaint.

I.

In April 1976 Newcomb was employed by the City of Milwaukee as deputy city attorney. His superior was defendant James Brennan, the city attorney of Milwaukee. Newcomb informed Brennan that he intended to run in the Democratic Party's primary election for the office of representative from the Fifth District to the Congress of the United States, a post then held by defendant Henry Reuss. After allegedly consulting with Reuss, Brennan informed plaintiff that he disapproved of the candidacy and that plaintiff would be fired if he persisted in his plans to run for office. Following the formal announcement of plaintiff's candidacy and upon his continued refusal to withdraw from the race, Brennan fired plaintiff on May 3, 1976.

Newcomb then filed suit against Brennan and Reuss seeking injunctive and monetary relief for deprivation of his constitutional rights under 42 U.S.C. §§ 1983 and 1985. The district court granted a motion to dismiss the action on November 15, 1976, stating that plaintiff's discharge did not constitute a deprivation of his constitutional rights. The court acknowledged the general rule, established in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Illinois State Union Council 34 v. Lewis, 473 F.2d 561 (7th Cir. 1972), that the dismissal of public employees for reasons of political patronage violates the First Amendment. The court noted, however, that both Elrod and Lewis created an exception to this general rule for public employees who occupy policymaking positions, and it held that plaintiff fell within this exception. It observed that the deputy city attorney is exempted from civil service, 2 has no term of office that is established in the City Charter, and has broad powers and duties described in both the City Charter 3 and the Milwaukee Code of Ordinances. 4 From this judicial notice of matters of public record, the court found that the deputy city attorney occupies a policymaking position and serves at the pleasure of the city attorney. Plaintiff now appeals the district court's decision.

II.

The gravamen of plaintiff's case is that his right to run for political office was protected under the First Amendment and that defendants abridged that right by causing him to be fired because he exercised it. The district court assumed that plaintiff's act of running for Congress was protected under the First Amendment and dismissed the complaint because it found, under the teaching of Elrod and Lewis, that the state's interest in permitting the city attorney to dismiss his subordinate for political reasons was of sufficient importance to justify the abridgment of plaintiff's First Amendment rights. Because we believe there is a substantial question whether the First Amendment encompasses plaintiff's interest in running for political office, we must resolve this issue before addressing the district court's reasons for dismissing the action.

Although the Supreme Court has frequently invalidated state action which infringed a candidate's interest in seeking political office, it "has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review." Bullock v. Carter, 405 U.S. 134, 142-43, 92 S.Ct. 849, 855, 31 L.Ed.2d 92 (1972). Rather, it has relied on the right of association guaranteed by the First Amendment in holding that state action which denies individuals the freedom to form groups for the advancement of political ideas, as well as the freedom to campaign and vote for the candidates chosen by those groups, is unconstitutional absent a strong subordinating interest. See, e. g., Buckley v. Valeo, 424 U.S. 1, 39-59, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam ); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). These decisions indicate that plaintiff's interest in seeking office, by itself, is not entitled to constitutional protection. See Developments in the Law Elections, 88 Harv.L.Rev. 1111, 1135 n. 81, 1218 (1975). Moreover, since plaintiff has not alleged that by running for Congress he was advancing the political ideas of a particular set of voters, he cannot bring his action under the rubric of freedom of association which the Supreme Court has embraced.

We would therefore have to affirm the dismissal of the complaint without ever reaching the ground on which the district court relied if plaintiff's First Amendment claim was based solely on a purported right to seek public office. As we read the complaint, however, it implicates interests which are broader than a per se right to candidacy. This is not a case where the plaintiff was denied access to the ballot as a result of the state's administration of a facially neutral program regulating elections. See, e. g., American Party v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974); Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971). Instead it is a case where the plaintiff's candidacy was burdened because a state official wished to discourage that candidacy in particular. Accordingly, if we assume that the allegations contained in the complaint are true, Brennan's conduct in firing plaintiff because Brennan disapproved of plaintiff's candidacy represented punishment by the state based on the content of a communicative act. The Supreme Court has repeatedly struck down state action regulating the content of expression. E. g., Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). See also Hudgens v. NLRB, 424 U.S. 507, 520, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976). Thus, plaintiff's interest in running for Congress and thereby expressing his political views without interference from state officials who wished to discourage the expression of those views lies at the core of the values protected by the First Amendment.

We conclude that under the circumstances of this case plaintiff's interest in seeking office was protected by the First Amendment. Moreover, Elrod made clear that the state has no greater power to dismiss a public employee because he exercised a First Amendment right than it has to directly restrain free expression. 427 U.S. at 358-59, 96 S.Ct. 1029. See also Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Therefore, the dismissal of the complaint can only be affirmed if the state's interest in permitting the city attorney to fire his deputy for political reasons is of sufficient importance to justify the infringement of plaintiff's First Amendment rights.

III.
A.

The district court's decision that in this case the state's interest outweighed individual rights turned on a finding that plaintiff was a policymaker. Plaintiff contends first that the district court erred in making this determination because it took judicial notice of facts not alleged in the complaint. He argues that on a motion to dismiss the court may consider matters outside the complaint only if these matters have been affirmatively presented to the court by the litigants. If the court decides not to exclude these matters, he asserts, it must then treat the motion as one for summary judgment and give the parties adequate opportunity to present pertinent material.

We cannot accept this argument. A court may take judicial notice of facts of "common knowledge" in ruling on a motion to dismiss. Robinson v. Mammoth Life & Accident Ins. Co., 454 F.2d 698, 699 (7th Cir. 1971) (per curiam ), cert. denied, 409 U.S. 872, 93 S.Ct. 202, 34 L.Ed.2d 123 (1972). We hold that matters of public record such as state statutes, city charters, and city ordinances fall within the category of "common knowledge" and are therefore proper subjects for judicial notice.

We must also reject plaintiff's further argument that the district court's determination that he occupied a policymaking position was erroneous even if the court properly took judicial notice of facts not alleged in the complaint. Although, as the Supreme Court noted in Elrod, "no clear line can be drawn between policymaking and nonpolicymaking positions, the nature of the responsibilities is critical" in resolving this issue. "An employee with responsibilities that are not well defined or are of a broad scope more likely functions in a policymaking position." 427 U.S. at 367-68, 96 S.Ct. at 2687. As deputy city attorney, plaintiff was given all the duties imposed by law on the city attorney, 5 including conducting all the law business of the city, drafting ordinances, and supervising assistant city attorneys. 6 Moreover, under the Milwaukee City Charter he was in line to succeed the Mayor of the City of Milwaukee if a vacancy occurred in that office. We agree with the district court that these facts clearly established that plaintiff's duties were of the "broad scope" which the Elrod Court equated with a policymaking function.

B.

Plaintiff's final argument is that, even if he was a policymaker, the state's subordinating interest was insufficient to...

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