Kolman v. Sheahan

• Decision Date: 12 July 1994
• Docket Number: No. 93-2801,93-2801
• Citation: 31 F.3d 429
• Parties: Thomas KOLMAN, Thomas Codilis, Rick Pere, et al., Plaintiffs-Appellants, v. Michael SHEAHAN, Sheriff of Cook County, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 429

31 F.3d 429

Thomas KOLMAN, Thomas Codilis, Rick Pere, et al Plaintiffs-Appellants, v. Michael SHEAHAN, Sheriff of Cook County, Defendant-Appellee.

No. 93-2801.

United States Court of Appeals Seventh Circuit.

Argued Feb. 22, 1994.

Decided July 12, 1994.

Matthew J. Piers (argued), Steven R. Verr, Jonathan A. Rothstein, Jennifer L. Fischer, Gessler, Flynn, Fleischmann, Hughes & Socol, Chicago, IL, for plaintiffs-appellants.

Karen Dimond, Susan C. Salita (argued), Office of the State's Atty. of Cook County, Chicago, IL, for defendant-appellee.

Before BAUER and MANION, Circuit Judges, and GILBERT, District Judge. ^*

MANION, Circuit Judge.

After Republican James O'Grady was elected Sheriff of Cook County, he appointed the plaintiffs, who were also Republicans, to desirable jobs in a new department. But when Democrat Michael Sheahan defeated O'Grady in his re-election bid in 1990, the plaintiffs were demoted or terminated. The plaintiffs sued Sheriff Sheahan, claiming he denied them their First Amendment right to support the Republican Party. They also claimed a property interest in their jobs, and alleged that Sheriff Sheahan denied them this property interest without due process. The district court dismissed the First Amendment claim; we reverse that decision and remand. The district court granted summary judgment on the due process claim; we affirm that decision.

I. Facts

In 1986, the voters of Cook County, Illinois elected Republican James O'Grady as sheriff. No doubt he brought some distinctive ideas to his office, and surely surrounded himself with loyal people to carry out his policies. In 1989, O'Grady established the Cook County Sheriff's Electrical Monitoring Unit (EMU). The EMU managed the use of electronic tracking devices for prisoners released from the Cook County Jail due to overcrowding. The plaintiffs--Thomas Kolman, Rick Pere, Thomas Codilis, Warren Anaya, Andy Rocus, Donald Malicki, and Kirk Surridge--were sheriff's department employees and active Republicans who supported O'Grady. Codilis and Malicki were promoted into the EMU and given the title Chief Deputy. The rest of the plaintiffs were hired into the EMU as investigators. With these appointments they all gained salary increases, improved working conditions, and other benefits.

O'Grady ran for re-election against Democrat Michael Sheahan in 1990. The plaintiffs actively supported O'Grady in his re-election bid. Sheahan won the election, and soon after that he terminated the plaintiffs from the EMU. Rocus and Malicki were dismissed from the sheriff's office altogether. The rest of the plaintiffs were reassigned to their previous positions in the sheriff's department; they lost any seniority they had accumulated before coming to and while at the EMU, and reverted to the lower salary of their previous positions. In 1990, Pere had taken and passed a qualifying test to become a police officer. Sheahan's administration never interviewed him for that position and, of course, never promoted him.

The plaintiffs sued Sheahan for these adverse employment decisions. They amended their complaint several times. In their Fourth Amended Complaint, which is before us, they made three claims. In count I, they alleged that they were "fired, demoted, forced to suffer loss of seniority, and denied the opportunity to be considered for promotions" in violation of the First Amendment, because they were Republicans who supported O'Grady. In count II, Pere alleged that he was illegally denied promotion under Illinois law, specifically 55 ILCS 5/3-7009 (Smith-Hurd 1992). In count III, they claimed that they had a property right to their jobs at the EMU, and were denied this property right without due process. Sheahan filed a motion to dismiss counts I and II, and a motion for summary judgment on count III. As to count I, the court determined that our decisions in Upton v. Thompson, 930 F.2d 1209 (7th Cir.1991), and Dimmig v. Wahl, 983 F.2d 86 (7th Cir.1993), created a per se right for sheriffs to fire subordinates for political reasons. Therefore, the court granted the motion to dismiss count I. The court also dismissed count II, determining that 55 ILCS 5/3-7009 simply did not create an action for failure to promote Pere. Finally, the court granted summary judgment on count III, concluding that the plaintiffs did not establish that they had a property right to their positions at the EMU. The plaintiffs have appealed the court's decisions on counts I and III.

II. Analysis

A. Standards of Review

This appeal involves both a dismissal under Fed.R.Civ.P. 12(b)(6), and summary judgment under Fed.R.Civ.P. 56. We review both the dismissal and the grant of summary judgment under a de novo standard. Midwest Grinding Co., Inc. v. Spitz, 976 F.2d 1016, 1019 (7th Cir.1992); Hamilton v. Komatsu Dresser Indus., 964 F.2d 600, 603 (7th Cir.1992). For the dismissal we look to the complaint; we accept all material allegations made in the complaint as true, and we draw all reasonable inferences from the allegations in the plaintiffs' favor. Scott v. O'Grady, 975 F.2d 366, 368 (7th Cir.1992). We will affirm the court's dismissal if "it appears beyond doubt that [the plaintiff] can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). For the summary judgment we look to the evidence; we view the evidence in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Summary judgment is authorized if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 247, 106 S.Ct. at 2509.

1. Political patronage.

While recognizing its political utility, courts have long struggled with the constitutional implications of political patronage: when does an elected official's need for loyal assistants conflict with a public employee's right to possess or express political beliefs? The Supreme Court has fashioned a precarious balance between a public official's prerogative to engage in patronage hiring and firing, and a public employee's freedoms of association and expression. In Elrod v. Burns, 427 U.S. 347, 372, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976), a plurality of the Court determined that the "need to ensure that policies which the electorate has sanctioned are effectively implemented," justifies patronage dismissal only for public employees in "policymaking positions." Four years later, the Court modified that standard somewhat. In Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1294, 63 L.Ed.2d 574 (1980), the Court stated: "[t]he ultimate inquiry is not whether the label 'policymaker' or 'confidential' fits a particular position; rather the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Like the Elrod criterion, the new standard required "examination of the powers inherent in a given office...." Tomczak v. City of Chicago, 765 F.2d 633, 640 (7th Cir.1985). But the new standard shifted the focus, from whether the office involved policymaking, to "whether the position held by the individual authorizes, either directly or indirectly meaningful input into government decisionmaking on issues where there is room for principled disagreement on goals or their implementation." Id. at 641.

The controlling precedent, therefore, requires that we look to the powers inherent in the plaintiffs' positions at the EMU, to see if they had meaningful input into government decisionmaking. Tomczak, 765 F.2d at 640, 641. But that type of specific inquiry is difficult at this early stage in the case. All that we know about the plaintiffs, their jobs and their dismissals is what they have alleged in their complaint; because the patronage question was resolved on a motion to dismiss, we are not able to reach beyond the complaint. Scott, 975 F.2d at 368. The complaint reveals little about the EMU, except that it somehow operates to monitor released prisoners of the Cook County Jail. The complaint divulges even less about the plaintiffs' responsibilities at the EMU, or the powers inherent in their jobs. We know only that Codilis and Malicki attained the title of Chief Deputy, and that the other plaintiffs were investigators. The complaint does not disclose what their jobs entailed or their level of contact with the sheriff. The complaint does not even describe the difference between a chief deputy and an investigator; we can only suppose that there was a difference.

At the outset it would be helpful to understand why, in order to accept these positions, most of the plaintiffs were "required to take an indefinite 'leave of absence' from [their] position[s] ... as a condition precedent" to being promoted into the EMU. In accepting this condition they apparently left the insulation of being a "merit" or "non-exempt" employee where they would be subject to firing only for good cause. (See 55 ILCS 5/3-700 et seq.) It would be important to know if they accepted these new positions knowing that they were politically sensitive and thus had to relinquish the statutory protection provided in their former positions.

We cannot even resort to common knowledge to know about the plaintiffs' job responsibilities. The EMU is an obscure department in Cook County government, at least from the public's perspective. Contrast this with a more visible position, like a mayor's chief of staff. If the chief of staff objected to his dismissal occasioned by a change in administrations, there would probably be no need for a court to view evidence about his job responsibilities...