Fraternal Order of Police Hobart Lodge No. 121, Inc. v. City of Hobart, 88-1001

• Decision Date: 29 December 1988
• Docket Number: No. 88-1001,88-1001
• Citation: 864 F.2d 551
• Parties: FRATERNAL ORDER OF POLICE HOBART LODGE # 121, INC., James Richards, and George Luke, Plaintiffs-Appellants, v. CITY OF HOBART, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 551

864 F.2d 551

57 USLW 2407

FRATERNAL ORDER OF POLICE HOBART LODGE # 121, INC., James

Richards, and George Luke, Plaintiffs-Appellants, v. CITY OF HOBART, et al., Defendants-Appellees.

No. 88-1001.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 16, 1988.

Decided Dec. 29, 1988.

James W. Myers, III, P.C., Crown Point, Ind., for plaintiffs-appellants.

Nick Katich, Lucas, Holcomb & Medrea, Merrillville, Ind., for defendants-appellees.

Before CUMMINGS, POSNER, and MANION, Circuit Judges.

POSNER, Circuit Judge.

This appeal requires us to decide a difficult and important question of free speech. Because the case was dismissed on the pleadings, we take as true the facts stated in the complaint. On May 5, 1987, the City of Hobart, Indiana, held its Democratic primary election. The mayor and several members of the city council were defeated. Many of the city's police had worked for the opposition during the primary campaign, and the lame-duck mayor and his lame-duck council were furious. A few weeks after the primary, the council enacted an ordinance requiring all city employees to work 2,080 hours a year (an average of 40 hours a week for every week in the year), minus sick leave and vacation. Anticipating the ordinance, the mayor had already issued an executive order directing that the ordinance be put into effect immediately upon enactment. Although the ordinance made no difference to the status of city employees who already worked a regular five-day week, it made a big difference to Hobart's police. They had been working a 5-2, 5-2, 5-3 schedule, meaning that they got three days off (rather than the regular two) every three weeks, and as a result averaged fewer than 39 hours a week. The ordinance required the police department to change to a regular five-day-a-week schedule.

Several weeks after the ordinance was enacted, the Hobart police union and two of its members filed this suit against the mayor and others, charging that the ordinance had been enacted to punish the police for opposing the mayor and council members in the primary. Laid under the ubiquitous 42 U.S.C. Sec. 1983, the complaint alleges that the ordinance violates the First Amendment, which the courts have, of course, held applicable to state (including municipal) action by virtue of the Fourteenth Amendment. The only relief sought in the complaint was an injunction against the ordinance. The district judge dismissed the suit under Fed.R.Civ.P. 12(b)(6) (failure to state a claim), on the ground that evidence concerning the motives of a legislative body is inadmissible to demonstrate a violation of the First Amendment. The plaintiffs asked to be allowed to amend the complaint to add a challenge to the executive order and a request for damages; the judge refused, on the ground that the switch of the plaintiffs' point of attack from the ordinance to the executive order was an attempt to evade the force of his ruling on the original complaint and that the suit had no merit whatever the relief sought. The plaintiffs appeal from both the dismissal of the original complaint and the refusal to let them file the amended complaint. We were told at argument that the ordinance has been repealed by the new city council--the insurgent Democratic slate that won the primary having gone on to win the general election as well. The request for an injunction is therefore moot, and the plaintiffs' only remaining stake is the cost to them of working longer hours during the period when the ordinance was in effect; for that is the measure of the harm they suffered from the defendants' alleged retaliation. See Ustrak v. Fairman, 781 F.2d 573, 579 (7th Cir.1986).

The defendants do not question that the First Amendment entitles Hobart's police to support candidates in a primary election, or that retaliation by public officials against the exercise of First Amendment rights is itself a violation of the First Amendment. See, e.g., Soderbeck v. Burnett County, 752 F.2d 285 (7th Cir.1985); Altman v. Hurst, 734 F.2d 1240, 1243 (7th Cir.1984) (per curiam); McGill v. Board of Education, 602 F.2d 774, 780 (7th Cir.1979); cf. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). The second proposition is vividly illustrated by our decision in Bart v. Telford, 677 F.2d 622 (7th Cir.1982), a case where the act of retaliation--which we held to be actionable under the First Amendment--was ridiculing a city employee for bringing a birthday cake to an office party; the ridicule was retaliation for her presumption in having run for the mayoralty against the incumbent. The posture of the present case prevents us from questioning that the only motive for the enactment of the ordinance was to punish the police for having opposed, and by opposing contributed to the defeat of, the very officials who enacted the ordinance. The council members failed to invoke their absolute legislative immunity (on which see, e.g., Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 732-34, 100 S.Ct. 1967, 1974-76, 64 L.Ed.2d 641 (1980)) in the district court, and have therefore waived it in this court. Finally, and it might seem dispositively, it is easy to name cases where legislators' intentions have been used to prove the unconstitutionality of their handiwork. See, e.g., Wallace v. Jaffree, 472 U.S. 38, 56-60, 105 S.Ct. 2479, 2489-92, 86 L.Ed.2d 29 (1985). Indeed, the Supreme Court has held that proof of discriminatory intent is indispensable to demonstrating that a state statute violates the equal protection clause, Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); and what is indispensable is also admissible.

Despite all this, we agree with the district judge that the complaint states no claim under the Constitution. Cases like Washington v. Davis do not supersede--not entirely at any rate--the principle that courts "will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." United States v. O'Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672 (1968); see also Palmer v. Thompson, 403 U.S. 217, 224-25, 91 S.Ct. 1940, 1944-45, 29 L.Ed.2d 438 (1971). This principle is founded not only on the difficulty of determining by forensic methods the motives of a collective body, but also on respect for the political process and on simple comity between departments of government. Its logic extends to a case like this, where, the offending ordinance having been repealed, the plaintiffs are seeking damages against those responsible for its enactment. The principle has certainly been qualified, however, see Washington v. Davis, supra, 426 U.S. at 244 n. 11, 96 S.Ct. at 2050 n. 11; we have to decide how much it has been qualified.

We think it survives undiminished in cases such as this where the statute or ordinance does not single out particular individuals or groups for benefits or burdens and is not challenged as discriminating on invidious grounds such as race, religion, and sex. In Vandenplas v. City of Muskego, 753 F.2d 555, 560 (7th Cir.1985), on which the plaintiffs in this case rely heavily and which contains a dictum that the motives of the members of the city council "would presumably be relevant" in "a case where facts implicating the First Amendment were properly alleged" (emphasis in original), the council had refused to pass a resolution that would have rescinded a "raze order" for the destruction of two buildings that the plaintiffs owned. Unlike this case, the council's action was directed against the plaintiffs and no one else. And in Feeney v. Massachusetts, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), the statute unsuccessfully challenged as discriminating against women gave job preferences to veterans. It was apparent from the statute that one group, veterans, was being benefited, obviously at the expense of another group--nonveterans--to which the plaintiffs belonged.

No outside observer reading Hobart's 40-hour-a-week ordinance would suppose it directed against the police or any other definable group. It does not mention police, whereas the statute in Feeney mentioned veterans. It appears to be an utterly commonplace personnel regulation. Of course appearances can deceive; many laws as innocuous as Hobart's ordinance do harm particular groups, and often these are groups that are on the political outs with the enacting body. But who can be surprised that legislators reward their supporters and mulct their opponents? What else is new?

This brings us to the second, and more cogent, ground of distinction between this case and cases such as Davis and Feeney where legislators' motives have been deemed relevant to the constitutionality of enactments. The political process is not impaired when legislators are merely forbidden to engage in invidious discrimination. It is impaired when legislators are forbidden to favor their supporters and disfavor their opponents. For that, after all, is politics, or rather an important part of politics. Politics is not merely, or even primarily, the disinterested pursuit of the public interest. It is a power struggle. See Grossart v. Dinaso, 758 F.2d 1221, 1236 (7th Cir.1985) (dissenting opinion). The First Amendment does not forbid the characteristic operation and outcome of representative government. Cf. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). It does not outlaw the interest-group state; it does not purge politics from politics. The desire to reward friends and punish enemies is not the ethic of the Sermon on the Mount, but neither is it on the same dismal plane with desiring to make entitlement to government benefits, or liability for the burdens of government, depend on immutable...