LaFalce v. Houston

• Citation: 712 F.2d 292
• Decision Date: 09 August 1983
• Docket Number: No. 82-3035,82-3035
• Parties: Paul A. LaFALCE, Plaintiff-Appellant, v. Michael HOUSTON and City of Springfield, Illinois, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 292

712 F.2d 292

Paul A. LaFALCE, Plaintiff-Appellant, v. Michael HOUSTON and City of Springfield, Illinois Defendants-Appellees.

No. 82-3035.

United States Court of Appeals Seventh Circuit.

Argued May 11, 1983.

Decided July 14, 1983.

Rehearing and Rehearing En Banc Denied Aug. 9, 1983.

Mary Lee Leahy, Leahy & Leahy, Springfield, Ill., for plaintiff-appellant.

Robert M. Rogers, Office of Corp. Counsel, City of Springfield, Springfield, Ill., for defendants-appellees.

Before CUDAHY and POSNER, Circuit Judges, and ROSENN, Senior Circuit Judge. ^*

POSNER, Circuit Judge.

We are asked to hold that the First Amendment, as applied to the states through the due process clause of the Fourteenth Amendment, forbids a city to use political criteria in awarding public contracts. The complaint, which was brought under 42 U.S.C. § 1983 and dismissed below on the defendants' Rule 12(b)(6) motion, alleges that the plaintiff submitted a bid to the City of Springfield, Illinois, on behalf of his business, Signs for Progress, to install and maintain benches along city streets; that "of all bids submitted Plaintiff's bid was the most favorable to the City"; but that nevertheless the defendant Mayor caused the city to "award the contract to another bidder, Ace Sign Company, because the operators of Ace Sign Company were political supporters of Defendant [Mayor] while Plaintiff was not." The complaint asks for actual and punitive damages amounting to $750,000.

In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Supreme Court held that the discharge of a nonpolicymaking public employee solely because of his political beliefs violates the First Amendment. The basis of these holdings is that public employees would be discouraged from expressing their true political views if it might cost them their jobs. Retribution short of discharge is actionable on the same principle. Delong v. United States, 621 F.2d 618, 623-24 (4th Cir.1980); Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982). The plaintiff in this case argues that contractors will similarly be discouraged from expressing their true political beliefs if the result of doing so may be the loss of public contracts; they will have an incentive, regardless of their beliefs, to support, financially and in other ways, incumbents or likely winners. The argument has an appealing symmetry but has been rejected in the only two reported cases, both from the Eighth Circuit, to consider it. Sweeney v. Bond, 669 F.2d 542, 545 (8th Cir.1982); Fox & Co. v. Schoemehl, 671 F.2d 303 (8th Cir.1982).

The practice of favoring political supporters in awarding contracts for public projects has a long history at the federal and particularly state and local levels. See, e.g., Caro, The Power Brokers: Robert Moses and the Fall of New York 713-14, 723-24, 738-39, 799 (1974); Heard, The Costs of Democracy 144 (1960). That it could interfere with the free expression of political views whether directly or through its effect on campaign contributions, cf. Buckley v. Valeo, 424 U.S. 1, 14-23, 96 S.Ct. 612, 632-636, 46 L.Ed.2d 659 (1976) (per curiam), is hardly open to question. But before we can decide whether the practice is therefore unconstitutional, we must consider both the extent of the likely interference and the consequences of trying to prevent it through an interpretation of the Constitution.

Although some business firms sell just to government, most government contractors also have private customers. If the contractor does not get the particular government contract on which he bids, because he is on the outs with the incumbent and the state does not have laws requiring the award of the contract to the low bidder (or the laws are not enforced), it is not the end of the world for him; there are other government entities to bid to, and private ones as well. It is not like losing your job. Of course, the contrast can be overstated; unless the government worker who loses his job cannot find another job anywhere, the loss will not be a total catastrophe. Nevertheless, many government workers could not find employment at the same wage in the private sector; and the prospect that a protracted period of search following discharge might well result in a substantially less well paid job would cause many government workers to flinch from taking political stands adverse to their superiors. An independent contractor would tend we imagine to feel a somewhat lesser sense of dependency.

There is also a...