Claussen v. Pence

• Decision Date: 10 June 2016
• Docket Number: No. 16-1003,16-1003
• Citation: 826 F.3d 381
• Parties: Matthew D. Claussen, et al., Plaintiffs–Appellants, v. Michael R. Pence, Governor of the State of Indiana, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

826 F.3d 381

Matthew D. Claussen, et al., Plaintiffs–Appellants

v.Michael R. Pence, Governor of the State of Indiana, et al., Defendants–Appellees.

No. 16-1003

United States Court of Appeals, Seventh Circuit.

Argued May 27, 2016

Decided June 10, 2016

Adam John Sedia, Attorney, Rubino, Ruman, Crosmer, Smith, Sersic & Polen, Dyer, IN, for Plaintiffs–Appellants.

Aaron T. Craft, Kyle Hunter, Attorneys, Office of the Attorney General, Indianapolis, IN, for Defendants–Appellees.

Before Posner and Flaum, Circuit Judges, and Alonso, District Judge.^*

Flaum

, Circuit Judge.

Plaintiffs are civil servants who hold elected office in the municipality that employs them. They challenge a recently-enacted Indiana law prohibiting persons from simultaneously holding elected office and being employed as civil servants in the same unit of government. Plaintiffs contend that the law violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. The district court granted defendants' motion to dismiss, and for the reasons that follow, we affirm.

I. Background

In 2012, the Indiana General Assembly enacted Indiana Code § 3-5-9-5

(the “Indiana Law” or the “Law”), which provides, in relevant part, that “an individual is considered to have resigned as a government employee when the individual assumes an elected office of the unit that employs the individual.” The Law became effective on January 1, 2013, but a grandfather clause allowed then-current officeholders to complete their terms before becoming subject to it. See Ind. Code § 3-5-9-7.

Plaintiffs are civil servants who also serve on city and town councils,¹ which are legislative bodies responsible for adopting budgets, levying taxes, and authorizing financial appropriations, among other things. Importantly, city and town councils have the authority to set the annual compensation for the municipal employees in their unit of government. In other words, plaintiffs have the ability to determine their own compensation, with some restrictions.²

It is undisputed that all but one of the plaintiffs earn a significantly higher salary in their civil service positions than in their elected positions.³ Therefore, plaintiffs contend that if the Law takes effect, they will be forced to resign from elected office.

On February 10, 2015, plaintiffs sued the State of Indiana and the Indiana State Board of Accounts—the state agency most closely tied to enforcement of the Indiana Law—in federal court in the Northern District of Indiana.⁴ Relevant to this appeal, plaintiffs argued that the Law violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

The State filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)

on April 6, 2015. Before the district court ruled on the motion, plaintiffs amended their complaint and substituted the governor of Indiana, Michael Pence, as well as several members of the Indiana State Board of Accounts, as defendants.⁵ Defendants filed a motion to dismiss the amended complaint and plaintiffs responded with a motion for summary judgment. On December 2, 2015, the district court granted defendants' motion and dismissed plaintiffs' complaint under Rule 12(b)(6).

II. Discussion

Plaintiffs appeal the dismissal of their First Amendment and Fourteenth Amendment claims. We review de novo the district court's dismissal of a complaint under Rule 12(b)(6)

. Brazil–Breashears v. Bilandic , 53 F.3d 789, 791 (7th Cir. 1995).

A. First Amendment

Plaintiffs contend that the Indiana Law violates the First Amendment because it burdens their right to assume municipal office once elected. Defendants respond that it is established law that requiring public employees to resign before running for elected office does not violate the First Amendment. Thus, defendants contend that the less burdensome Indiana Law, which only requires resignation if the civil servant runs for office and wins, must be constitutional.

We agree with defendants that the Indiana Law falls squarely within the bounds of settled Supreme Court precedent upholding restrictions on the political activity of state employees. See Clements v. Fashing , 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982)

(upholding the constitutionality of provisions of the Texas Constitution restricting the political activity of state employees, including by prohibiting a sitting judge from serving on the state legislature); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (holding that Oklahoma may regulate the political activities of its state employees); U.S. Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers , 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) (reaffirming United Pub. Workers of Am. v. Mitchell , 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), which held that the Hatch Act's restrictions on a broad range of political activities by federal employees was constitutionally permissible). In fact, the Supreme Court has repeatedly upheld the constitutionality of “resign-to-run” laws, which forbid public employees from running for elected office. Clements , 457 U.S. at 971–72, 102 S.Ct. 2836 ; Broadrick , 413 U.S. at 616–17, 93 S.Ct. 2908 ; Letter Carriers , 413 U.S. at 556, 93 S.Ct. 2880. As defendants point out, resign-to-run laws place a greater burden on candidacy than the Indiana Law because the public employee who wishes to run for office must resign his or her employment in order to become a candidate. By contrast, under the Indiana Law, a civil servant is required to resign only if he or she is elected.

Plaintiffs argue in vain that, unlike resign-to-run laws, the Indiana Law implicates fundamental rights and thus deserves heightened scrutiny. They contend that the right to assume office once elected is derived from the right to vote, and is thus a fundamental right, distinguishable from the right to candidacy. In the alternative, plaintiffs contend that heightened scrutiny is appropriate because the Indiana Law burdens voters by limiting the field of candidates from which they may choose.

At the outset, we agree with the district court that the right to assume or hold office once elected is not a fundamental right. It is well established that the right to be a candidate for office is not a fundamental right. Brazil–Breashears , 53 F.3d at 792

. Like the other federal courts that have confronted this issue, we agree that there is “no palpable distinction” between a prohibition on running for office and a prohibition on holding office. Krisher v. Sharpe , 763 F.Supp. 1313, 1319 (E.D. Pa. 1991), aff'd , 944 F.2d 897 (3d Cir. 1991) ; Fletcher v. Marino , 882 F.2d 605, 614 (2d Cir. 1989) (deeming “absurd” plaintiffs' argument that “because they have been allowed to run for office they cannot now be prevented from taking office”).

We likewise reject plaintiffs' alternative argument that the Indiana Law deserves heightened scrutiny because it burdens voters' exercise of the franchise. The Supreme Court has acknowledged that laws affecting a candidate's access to the ballot implicate voters' First and Fourteenth Amendment rights, and in some circumstances, deserve a close look. But the “existence of ... barriers [to candidacy] does not of itself compel close scrutiny.” Bullock v. Carter , 405 U.S. 134, 143, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972)

. To warrant a heightened level of scrutiny, the contested statute must significantly encroach upon the right to vote or a candidate's access to the ballot. See

id. at 144, 92 S.Ct. 849 (closely scrutinizing a law requiring a hefty filing fee for candidates because of a “real and appreciable impact on the exercise of the franchise”); Anderson v. Celebrezze , 460 U.S. 780, 788–96, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) (striking down an Ohio law requiring independent presidential candidates to file a statement of candidacy nine months before the election because of its “substantial impact” on independent-minded voters); cf.

Timmons v. Twin Cities Area New Party , 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (“Regulations imposing severe burdens on plaintiffs' rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.” (citation and internal quotation marks omitted)).

Here, the contested law has a negligible impact on voters. The Indiana Law does not exclude candidates from the ballot or bar would-be candidates from running for office. Cf. U.S. Term Limits, Inc. v. Thornton , 514 U.S. 779, 835 n.48, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995)

(observing that resign-to-run laws “plac[e] no obstacle between [a candidate] and the ballot or his nomination or his election. He is free to run and the people are free to choose him” (alterations in original) (citation and internal quotation marks omitted)); Clements , 457 U.S. at 971, 102 S.Ct. 2836 (concluding that the resign-to-run provision's “burden on [plaintiffs'] First Amendment interests in candidacy [was] insignificant”). The Indiana Law does no more than prohibit civil servants from holding elected office in the same body of municipal government that employs them. And unlike the resign-to-run laws that have been deemed constitutional, the Indiana Law allows a candidate to remain employed while taking a chance on the electoral process. As such, the Law's chilling effect on candidacy, and thus voters' exercise of the franchise, is lessened. Finally, the Law applies evenhandedly to candidates from all parties and all backgrounds, and therefore, is unlikely to burden a particular segment of the community at the voters' expense. Compare Bullock , 405 U.S. at 144, 92 S.Ct. 849

(striking down a law that would have excluded from the ballot all but the wealthiest candidates or those with affluent backers), with

Clements , 457 U.S. at 965,...