Avery v. Jennings

• Decision Date: 20 March 1986
• Docket Number: No. 85-3075,85-3075
• Citation: 786 F.2d 233
• Parties: Deborah L. AVERY, Plaintiff-Appellant, v. Robert JENNINGS, John E. Held, Joseph DeCourcy, Jr., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 233

786 F.2d 233

54 USLW 2482

Deborah L. AVERY, Plaintiff-Appellant, v. Robert JENNINGS, John E. Held, Joseph DeCourcy, Jr. Defendants-Appellees.

No. 85-3075.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 14, 1985.

Decided March 20, 1986.

Robert B. Newman (argued), Cincinnati, Ohio, for plaintiff-appellant.

James W. Harper (argued), Asst. Pros. Atty., Cincinnati, Ohio, for defendants-appellees.

Before MERRITT and MARTIN, Circuit Judges, and JOHNSTONE, Chief Judge. ^*

MERRITT, Circuit Judge.

The question presented here is one of first impression: To what extent does the first amendment principle prohibiting political discharge of government employees, established 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), apply to political hiring decisions by local elected officials? We hold that although the first amendment prohibits official hiring policies based solely on political affiliation, it does not constitutionalize civil service standards or establish a hard and fast employment rule against weighing political factors. Neither Congress, a state legislature, nor a local administrator may "enact a regulation" against hiring members of a particular political party, United Public Workers v. Mitchell, 330 U.S. 75, 100, 67 S.Ct. 556, 569, 91 L.Ed. 754 (1947), or exacting a loyalty oath, Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952), but elected officials may weigh political factors such as party allegiance along with other factors in making subjective hiring judgments.

I.

Deborah Avery appeals the District Court's grant of summary judgment for the defendants, 604 F.Supp. 1356. There is no genuine issue as to the facts.

The three defendants are members of the Republican Party in Hamilton County, Ohio, and hold the locally elected positions of Clerk of the Court of Common Pleas (Jennings), County Recorder (Held), and County Auditor (DeCourcy). Plaintiff Avery, a member of the Democratic party, applied to each for a clerical job as a secretary, clerk, or office helper. None of the officials knew of her political affiliation.

The political affiliation of a job applicant is taken into account in the hiring process in a round-about sort of way. As jobs become available, the official for the most part fills the vacancies informally on an ad hoc basis with friends, relatives, or acquaintances, or with the friends or relatives of political allies. Since plaintiff was unconnected with this network, her application was not considered. ¹

Each of the elected officials testified that he had no firm rule or policy forbidding the hiring of Democrats, and that he usually did not inquire into party affiliation. They also testified, however, that the informal hiring system operates to prefer Republicans and that since they are Republican office holders this preference is natural and reasonable in their view. For example, Jennings testified that he "would favor hiring qualified Republicans" for his office. DeCourcy stated that "all things being equal I prefer to have a Republican working for me because I assume that he would be more interested in taking part in helping me get re-elected." And Held stated that "it just works better when people have the same philosophy."

The statistical evidence in the record bears out the elected officials' testimony and the plaintiff's argument that the system operates so as to give preference to Republicans. Discovery taken during pretrial proceedings revealed that defendants' offices were staffed overwhelmingly with Republicans, with a sprinkling of Democrats. For example, Jennings' office had hired 210 persons from January 1, 1976 through October, 1983, only two of whom were registered Democrats. Similar patterns were shown for the offices of Held and DeCourcy: The Recorder's Office had hired 62 persons during the same period, five of whom were Democrats. The Auditor's office had hired 160 persons during the same period; three of them were Democrats.

The District Court granted summary judgment in favor of the defendants on several alternative grounds. First, the District Court held that the Supreme Court's invalidation of politically-motivated discharges 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), does not apply to hiring practices but only to discharge. Second, that plaintiff had failed to satisfy the requirements for making out a first amendment violation under other principles of first amendment law relating to public employees. Third, that in order for plaintiff to show a first amendment violation she must show that the defendants deliberately refused to hire her because of her political beliefs and party affiliation, which she had failed to do since the evidence showed that none of the defendants had any knowledge of her beliefs or affiliation.

II.

In reviewing a grant of summary judgment the appellate court must view the record in the light most favorable to the party adversely affected. Bishop v. Wood, 426 U.S. 341, 347-48, 96 S.Ct. 2074, 2078-79, 48 L.Ed.2d 684 (1976). Appellee's brief appears at any rate to accept Avery's version of the facts presented on summary judgment. In this case, that means accepting that defendants had a general practice of hiring those applicants who were friends or who were referred by political allies leading to a disproportionate number of Republican employees. The question presented is thus whether, in light of Elrod and Branti, such a practice unconstitutionally infringes the first amendment rights of applicants who are not seriously considered because they are not within this informal network.

In Elrod v. Burns, a newly elected Democratic Sheriff discharged Republican employees of the Cook County, Illinois Sheriff's Department. The sheriff required them to switch their allegiance to the Democratic party and agree to work for or contribute money to the Democrats. 427 U.S. at 355, 96 S.Ct. at 2680-81. The Supreme Court found that this practice violated the first amendment rights of the employees, but did not issue a majority opinion. The plurality (consisting of Justices Brennan, White and Marshall) found that two interests were implicated in the case: the individual employee's right to express political beliefs, and the interest of the political system in wide-open, robust and uninhibited debate. Thus, discharging employees because of their political affiliations was "tantamount to coerced belief," id., and as such violated the fundamental interest in free competition in ideas by stifling debate and by granting one side a significant advantage in that competition. 427 U.S. at 355-56, 96 S.Ct. at 2680-81. Justice Stewart's concurrence, joined by Justice Blackmun, limited its scope and hence the court's holding (see Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977)) to nonpolicymaking, nonconfidential employees discharged because of political beliefs or affiliation. 427 U.S. at 375, 96 S.Ct. at 2690-91.

Branti v. Finkel clarified the Court's holding in Elrod. The Court went beyond Elrod to find the politically-motivated discharge of public employees improper except where "party affiliation is an appropriate requirement for effective performance of the public office involved." 445 U.S. at 518, 100 S.Ct. at 1295. In dissent Justice Powell argued that the historical place of patronage in American politics, and its importance in encouraging participation in the political process, made the patronage system worthy of more deference than the majority opinion showed. Id. at 521-34, 100 S.Ct. at 1296-1303. Others have made the same argument. See, e.g., Moeller, The Supreme Court's Quest for Fair Politics, 1 Const'l Commentary 203, 213-219 (1984) (endorsing Powell's approach); Piven, Federal Policy and Urban Fiscal Strain, 2 Yale L. & Pol'y Rev. 291, 302-311 (1984) (decline of patronage system in big cities has deprived minorities and poor of the opportunities for advancement and political participation it provided).

Although the informal hiring practices in question here place some burden on the associational rights of prospective job applicants, that burden does not rise to the level of a constitutional deprivation. Under the first amendment, government actions receive a much higher degree of scrutiny when those actions are aimed at restricting the content of speech...