Meeks v. Grimes

• Decision Date: 19 December 1985
• Docket Number: No. 85-1176,85-1176
• Parties: Moses MEEKS, Jose Lopez, Emitt Barge, George Butler, Carl Hutchinson, George Washington, Gloria Kaplanos, Administratrix of the Estate of Bill Gianopoulos, Plaintiffs-Appellants, v. Douglas M. GRIMES, individually and as Judge of the Gary City Court of Gary, Indiana; Office of the Gary City Court of Gary, Indiana; Common Council of the City of Gary and its Individual Members, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 417

779 F.2d 417

Moses MEEKS, Jose Lopez, Emitt Barge, George Butler, Carl Hutchinson, George Washington, Gloria Kaplanos Administratrix of the Estate of Bill Gianopoulos, Plaintiffs-Appellants, v. Douglas M. GRIMES, individually and as Judge of the Gary City Court of Gary, Indiana; Office of the Gary City Court of Gary, Indiana; Common Council of the City of Gary and its Individual Members, Defendants-Appellees.

No. 85-1176.

United States Court of Appeals Seventh Circuit.

Argued Oct. 24, 1985.

Decided Dec. 19, 1985.

James J. Frank, Gary, Ind., for plaintiffs-appellants.

Alton L. Gill, Jr., Dept. of Law, City of Gary, Gary, Ind., for defendants-appellees.

Before WOOD and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FLAUM, Circuit Judge.

Plaintiffs-appellants are former bailiffs of the Gary City Court of Gary, Indiana who claim that they were terminated for their political activities in violation of the First and Fourteenth Amendments as interpreted in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Following a bench trial the district court ruled in favor of the defendants and plaintiffs appealed to this court. Finding there to be insufficient evidence that these bailiffs fall within the exception to the First Amendment's protections for positions where political affiliation is a bona fide job criterion we reverse and remand for further findings.

I.

Plaintiffs were employed as bailiffs of the Gary City Court by Judge Fredrick T. Work and served under him until the end of the judge's second four-year term in 1979. The Gary City Court consists of one elected judge who presides over both the criminal and civil divisions of the court. The court employs a number of referees who take responsibility for hearing unspecified types of cases. Under Indiana law the bailiffs of this type of local court are appointed by the judge under whom they serve. The law further provides that bailiffs are "at will" employees who serve at the pleasure of the employing judge. In essence, the bailiffs' position is a classic example of a patronage appointment given to an elected official.

As the 1979 election drew near Judge Work decided not to seek a third term, throwing the Democratic party, of which he was a member, into a factional battle. The nature of Gary politics at the time was such that the person prevailing in the Democratic primary was assured victory in the general election. In the 1979 primary, the defendant, Douglas Grimes, who ran and lost to Judge Work in 1975, ran against Lloyd B. Fisher, who had the active support of Judge Work and the plaintiffs-bailiffs. Following a hard-fought primary that generated "considerable ill will" between elements of the Democratic party, the defendant prevailed and took the oath of office on January 7, 1980. On the same date all the plaintiffs were discharged from their positions with the court. The bailiffs proceeded to file this Sec. 1983 action against Judge Grimes, individually, and the Gary City Court praying for damages and injunctive relief for alleged violations of the plaintiffs' First and Fourteenth Amendment rights.

Trial was held before Judge Kanne, who after hearing all the testimony ruled in favor of the defendants. The court found that the plaintiffs were discharged solely because of their political activities in opposition to Judge Grimes but that the defendants' action was privileged under 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). The lower court held that the plaintiffs were "policymaking or confidential" employees within the recognized exception to the First Amendment prohibition against politically motivated patronage discharges. Judge Kanne, while finding that bailiffs were not policymakers, ruled that bailiffs were as a practical matter almost always confidential employees. This conclusion was based on: (1) the fact that the bailiffs are viewed as the judge's representatives in public and thus must have the complete confidence of the judge in order to avoid ethical problems and maintain the public's perception of the court; (2) the bailiffs' access to confidential communications and records; (3) the difficult working condition engendered by the natural animosity resulting out of political opposition.

II.

At the outset, we find no reason to disturb the district court's finding that the dismissal of the plaintiffs was politically motivated. This determination was based on the credibility of the testimony heard at trial coupled with the strong circumstantial inference arising from the close temporal proximity of the defendant's assumption of office and the dismissals. In these circumstances an appellate court's review is very limited; we will not disturb the trial court's factual findings absent a definite and firm conviction that a mistake has been committed. See Fed.R.Civ.P. 52(a). See also O'Toole v. New York Life Insurance Co., 671 F.2d 913 (5th Cir.1982); Wattleton v. International Brotherhood of Boiler Makers, 686 F.2d 586 (7th Cir.1982), cert. denied, 459 U.S. 1208, 103 S.Ct. 1199, 75 L.Ed.2d 442 (1983). The defendants have presented no arguments on appeal which undermine our faith in Judge Kanne's factual determination. This leaves this appeal with one crucial issue: whether the bailiffs are policymaking or confidential employees and thus subject to patronage discharge.

A.

As was recognized by the Court in Elrod, patronage is a reality of American politics which almost invariably comes into conflict with the protections provided the government employee under the First Amendment. 427 U.S. at 353-56, 96 S.Ct. at 2679-81. The judicial attempt at dealing with this tension is a rough balance between governmental efficiency, political reality, and individual liberty. See, e.g., Shondel v. McDermott, 775 F.2d 859, 864 (7th Cir.1985); Tomczak v. City of Chicago 65 F.2d 633, 640-41 (7th Cir.1985). As the doctrine has evolved from its initial enunciation in Elrod the problems faced by the courts in applying the formulation have become increasingly intractable. This is the natural product of the fact that, not only do job classifications and personalities vary in each case, but also there are substantial differences between governmental bodies and between individual departments or units within a given governmental body. Quite simply, it is difficult to compare the Gary City Courts to the City of Chicago or to a two person state's attorney's office in a rural community. Given this background we find it necessary to re-examine the doctrine of patronage dismissals as it is applied to certain small governmental units.

In finding that the sheriff of Cook County could not discharge certain bailiffs and process servers, a plurality of the Supreme Court in Elrod held that "a non-policy-making, nonconfidential government employee can [not] be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs." 427 U.S. at 375, 96 S.Ct. at 2690 (Stewart, J. concurring). (Since Justice Stewart's concurrence was necessary to constitute a majority his opinion has often been read as the opinion of the Court, see Tomczak, 765 F.2d at 640; Stegmaier v. Trammell, 597 F.2d 1027, 1033-34 (5th Cir.1979).) The opinion was read to establish a definitional-categorizational test whereby the protection accorded the plaintiff was based on whether the office held could be found to be a "policymaking" or "confidential" position. See Stegmaier at 1034; Ness v. Marshall, 660 F.2d 517, 520 (3d Cir.1981).

Four years later in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) the Supreme Court moved away from the policymaking and confidential labels and towards a more functional analysis. "[T]he question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the office involved." 445 U.S. at 518, 100 S.Ct. at 1294. (It should be noted that the focus here is on the office or position rather than the individual officeholders. ¹ See Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982).) While Branti establishes the line of central inquiry in political discharge cases, see Soderbeck v. Burnett County, 752 F.2d 285, 288 (7th Cir.1985), it would be erroneous to say that the policymaking and confidential categorizations are no longer useful. "Policymaking" and "confidential" do accurately describe the vast majority of offices that fall within the realm of legitimate patronage under the Branti formulation.

Policymaking type positions, as broadly defined by this court, see Nekolny, 653 F.2d at 1169-70, are invariably offices for which political affiliation is a legitimate job criterion. In Nekolny v. Painter we held that an "employee's position is unprotected if, first, there is room for principled disagreement in the decisions reached by the employee and his superiors, and, second, he has meaningful direct or indirect input into the decision making process." Tomczak, 765 F.2d at 641 (describing the holding in Nekolny, 653 F.2d at 1170). This is derived from the fact that the First Amendment's protections must reflect political reality; "[t]hus, if an employee's private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State's vital interest in maintaining governmental effectiveness and efficiency." Branti, 445 U.S. at 517, 100 S.Ct. at 1294 (citing Elrod, 427 U.S. at 366, 96 S.Ct. at 2686). The bailiffs here could not be considered to be decisionmakers within the scope of our decisions in Nekolny or Tomczak and the district court so held. To the extent the record reveals anything, it establishes that the bulk of the plaintiffs'...