Kurowski v. Krajewski
| Decision Date | 02 June 1988 |
| Docket Number | Nos. 87-2675,87-3016,s. 87-2675 |
| Parties | , 3 Indiv.Empl.Rts.Cas. 899 Steven A. KUROWSKI and David H. Nicholls, Plaintiffs-Appellees, v. James J. KRAJEWSKI, individually and in his capacity as Judge of the Lake County Court, Division III, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David A. Arthur, Deputy Atty. Gen., Indianapolis, Ind., for defendant-appellant.
Rosalie B. Levinson, Levinson & Lustina, Merrillville, Ind., for plaintiffs-appellees.
Before WOOD, Jr., COFFEY and EASTERBROOK, Circuit Judges.
After judge Orval Anderson of the Lake County Court was indicted, the Supreme Court of Indiana appointed James J. Krajewski in February 1985 to fill the position temporarily. Under Indiana law, Krajewski had the authority to appoint any necessary public defenders. The chief public defender had been indicted, but Krajewski asked Steven A. Kurowski and David H. Nicholls, the assistant public defenders, to stay on. Judge Anderson resigned in June 1985 following his conviction, see United States v. Anderson, 798 F.2d 919 (7th Cir.1986), and the Governor of Indiana gave Krajewski the regular appointment. Krajewski praised the work of Kurowski and Nicholls to date and increased their salaries.
Six months later he fired them. Kurowski and Nicholls, like the judge who hired them, are Democrats. Nicholls is a member of the Central Committee of Lake County's Democratic Party; Kurowski is a Vice-Committeeman of his precinct. They campaigned for Judge Anderson's retention in 1976, 1980, and 1984; Kurowski represented him in the criminal prosecution. Krajewski, like the Governor who appointed him, is a Republican. Although Krajewski appointed as chief public defender a friend who generally votes Democratic (but is not active in politics), he filled the assistants' jobs with Republicans. The assistants responded with this suit under 42 U.S.C. Sec. 1983, contending that the use of political criteria in selecting public defenders violates the first amendment, applied to the states through the fourteenth.
The parties consented to final disposition by a magistrate, 28 U.S.C. Sec. 636(c). The magistrate granted partial summary judgment to the plaintiffs on issues concerning official immunity and held a trial on the question whether Judge Krajewski fired the plaintiffs because of their politics. He concluded that Krajewski had done this and awarded compensatory damages aggregating $59,075 and punitive damages of $1,000 per plaintiff; he also ordered the plaintiffs reinstated as assistant public defenders. On motion of the plaintiffs, the magistrate awarded $13,905 as attorneys' fees under 42 U.S.C. Sec. 1988. Krajewski's appeal contests every aspect of the decision except the award of punitive damages, which he apparently concedes are appropriate if he is liable at all.
Public defenders represent criminal defendants, and their loyalty as advocates runs to their clients, not to their employer. Although paid by the state, in their role as counsel they are not even "state actors". Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). The Supreme Court said in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), that political beliefs and affiliations are not permissible criteria for firing public defenders, precisely because a public defender is the advocate of the accused rather than a maker or implementer of political decisions. Branti held that a chief public defender may not fire assistant public defenders on political grounds. Krajewski argues that things are different when a judge fires an assistant public defender, but this misunderstands Branti. The Court's decision turned on the characteristics of the assistant public defender's job, not on the office of the person doing the firing.
Branti dealt with public defenders in New York. Krajewski tells us that public defenders in Indiana are different. Indiana Trial Rule 63(E) permits a trial judge to appoint a "judge pro tempore " to serve while he is away. The judge pro tempore exercises the full powers of the office, conducting trials, sentencing defendants, and so on. See Survance v. State, 465 N.E.2d 1076 (Ind.1984). Krajewski's predecessor frequently appointed public defenders to sit as judges pro tempore in his absence. Krajewski continued this practice with respect to Kurowski, although there is no evidence that he appointed Nicholls to sit as judge pro tempore.
Judge Krajewski maintains that the duties of the office of public defender in Indiana therefore include functions in addition to those considered in Branti, and that because the judge pro tempore is a policy-maker for the State of Indiana, political criteria may be applied to the job of public defender. The magistrate disagreed on the ground that judges pro tempore are not the instruments of the judge who appoints them; because judges pro tempore are free agents, the magistrate thought, and do not carry out the regular judge's policy, it is inappropriate for the regular judge to employ political criteria in selecting a judge pro tempore.
The magistrate's approach is unsatisfactory because it assumes that Branti and its progenitor, Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), permit an appointing officer to consider the appointee's political views only when the appointee carries out the appointing official's own "policy". If this is so then, for example, the governor could not consider a would-be judge's politics when deciding whom to appoint (because the judge is independent of the governor once in office), and the President could not consider the views of a prospective appointee to the Federal Trade Commission when making that selection. Neither Elrod nor Branti makes anything turn on the relation between the job in question and the implementation of the appointing officer's policies.
A governmental officer holding the power of appointment may make any decision he pleases, unless the Constitution bars the way. The pertinent provision--the guarantee of free speech contained in the first amendment--disables the government from firing a person based on his speech and political beliefs (and thus penalizing the employee for holding or advocating those beliefs) unless the beliefs are relevant to the job in question. They will be relevant, the Court said in Branti and Elrod, when the office involves making on the state's behalf the sort of decisions about which there are political debates. That is to say, the first amendment does not remove political beliefs from politics; it would undermine the democratic process to hold that the winners at the polls may not employ those committed to implementing their political agenda.
So the right question is whether there may be genuine debate about how best to carry out the duties of the office in question, and a corresponding need for an employee committed to the objectives of the reigning faction. Shondel v. McDermott, 775 F.2d 859, 864 (7th Cir.1985); Lindahl v. Bartolomei, 618 F.Supp. 981, 987-88 (N.D.Ind.1985). When the officeholder wields the final authority of the government, the answer to that question almost always will be yes. It will frequently be yes even lower within the bureaucracy. See, e.g., Tomczak v. City of Chicago, 765 F.2d 633 (7th Cir.1985), holding that the number two person in a bureaucracy devoted to delivering water could be fired on political grounds, because the operation of municipal enterprises is embroiled in politics--because there may be genuine debate both about how to allocate resources between waterworks and snow removal, and about how best to deliver water--the "ins" need the loyalty of the senior managers in order to implement their programs.
A judge both makes and implements governmental policy. A judge may be suspicious of the police or sympathetic to them, stern or lenient in sentencing, and political debates rage about such questions. In most states judges are elected, implying that the office has a political component. Holders of the appointing authority may seek to ensure that judges agree with them on important jurisprudential questions. The Governor of Indiana was entitled to consider Krajewski's views about the role of judges--or even simply Krajewski's political affiliation--when making the appointment, just as the voters may consider these factors without violating the first amendment when deciding whether to retain Judge Krajewski in office. (We put aside all debate about whether recourse to politics in selecting judges is good or bad; we are concerned only with the constraints the first amendment imposes on the way the State of Indiana prefers to organize its government.) What is true about the office of judge is true about the office of judge pro tempore. It is the same job; only the tenure of the officeholder differs. The regular judge holds office for four years; the judge pro tempore holds office at the pleasure of the regular judge. Since the disposition under Elrod and Branti depends on the duties of the office rather than the tenure of the incumbent, it follows that political beliefs may be the basis for the appointment of a judge pro tempore. If Judge Krajewski wants a judge pro tempore committed to "law and order" or to sympathy for criminal defendants, the first amendment is no obstacle.
Accordingly, we must decide whether the plaintiffs' job included duties as judge pro tempore, for if it did then Judge Krajewski may apply political criteria. And we must ask what the powers of the actual office were, not what an "ideal" public defender does. Tomczak, 765 F.2d at 640. Because the magistrate granted partial summary judgment for Kurowski and Nicholls on the question whether Judge Krajewski could take their politics into account, any disputed question of material fact requires a remand for retrial.
There is no material...
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