Riley v. Blagojevich, 04-3085.
| Decision Date | 23 September 2005 |
| Docket Number | No. 04-3436.,No. 04-3085.,04-3085.,04-3436. |
| Parties | Samuel RILEY, Plaintiff-Appellee, v. Rod R. BLAGOJEVICH et al., Defendants-Appellants. Thomas Snyder, Plaintiff-Appellant, v. Rod R. Blagojevich et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Scott A. Schimanski (argued), Joliet, IL, for Plaintiff-Appellee/Plaintiff-Appellant.
Jeffrey D. Colman, John R. Storino (argued), Jenner & Block, Melissa J. Auerbach, Cornfield & Feldman, Chicago, IL, for Defendants-Appellants/Defendants-Appellees.
Before BAUER, POSNER, and EVANS, Circuit Judges.
We have consolidated for argument and decision two essentially identical cases, though decided differently by the district judges. In both, assistant wardens of Illinois state prisons, fired by the governor of the state because they are not of his political party, contend that they are not policymaking officials or confidential employees and therefore that for the governor to have fired them on the basis of their political affiliation violated their right of free speech. They seek compensatory and punitive damages. In the case of Riley, who was assistant warden for operations at a prison that has some 700 inmates, Judge St. Eve denied the defendants' motion to dismiss, which asserted qualified immunity (and so the denial, though interlocutory, was an appealable order), and they appeal. In the case of Snyder, who before he was fired was the assistant warden for programs at a somewhat smaller prison, Judge Shadur granted summary judgment for the defendants, and Snyder appeals.
The Supreme Court has held in the name of freedom of speech that a public official cannot be fired on the basis of his political affiliation unless the nature of his job makes political loyalty a valid qualification; this could be either because the job involves the making of policy and thus the exercise of political judgment or the provision of political advice to the elected superior, or because it is a job (such as speechwriting) that gives the holder access to his political superiors' confidential, politically sensitive thoughts. Elrod v. Burns, 427 U.S. 347, 367-68, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Identifying those jobs is no mean feat. Almost all jobs in government above the lowest levels require the holder of the job to exercise at least a modicum of discretion; and discretion exercised by a subordinate, invisible to the public, who is a political enemy of the elected officials who are blamed when things go wrong can undermine the officials' programs (often just by passive resistance) and by doing so thwart democratic preference.
Above the lowest levels of the civil service the question is not discretion or no discretion but less or more, and in such cases drawing a line is inescapably arbitrary, as the following summary of our previous cases suggests:
In general, employees who have merely ministerial duties—who really have very little discretion—and employees whose discretion is channeled by professional rather than political norms (a surgeon often exercises judgment, but it is professional rather than political judgment), are not within the exception for policymakers. But the line between professional and policy judgment is often blurred; for example, is the physician who runs a county hospital making a professional judgment or a policy judgment if he decides to authorize the hospital's physicians to assist suicides, prescribe "medical marijuana," or perform abortions? And an administrator will often exercise both professional and broader policy responsibilities; this further complicates classification.
The uncertainty in the case law demonstrated in our table (similar tables could be constructed for the other federal courts of appeals), although somewhat exaggerated because the same title can denote quite different levels of...
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Bagienski v. Madison County, Indiana
...effective performance of his position, that official may be terminated on the basis of his political affiliation." Riley v. Blagojevich, 425 F.3d 357, 359 (7th Cir.2005) (citing Elrod v. Burns, 427 U.S. 347, 367-68, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 518, ......
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Michalowski v. Rutherford
...affiliation unless “the nature of [the public official's] job makes political loyalty a valid qualification.” Riley v. Blagojevich, 425 F.3d 357, 359 (7th Cir.2005) ; see also Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) ; Elrod v. Burns, 427 U.S. 347, 367–68, ......
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Weiler v. Vill. of Oak Lawn
...an appropriate ground of decision for policymaking and confidential positions.” Benedix, 677 F.3d at 320 ; see also Riley v. Blagojevich, 425 F.3d 357, 359 (7th Cir.2005) (political affiliation may be a valid job qualification “either because the job involves the making of policy and thus t......
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Greene v. Cook Cnty. Sheriff's Office
...where a reliable job description provides a “safe harbor” for the defendant-employer's reliance on political factors. Riley v. Blagojevich, 425 F.3d 357, 365 (7th Cir.2005) ; see also Ockomon, 668 F.3d at 478. Neither circumstance presents itself here. No party has identified a state statut......