Rutan v. Republican Party of Illinois

• Decision Date: 11 July 1986
• Docket Number: No. 85-2369.,85-2369.
• Citation: 641 F. Supp. 249
• Parties: Cynthia RUTAN, et al., Plaintiffs, v. The REPUBLICAN PARTY OF ILLINOIS, et al., Defendants.
• Court: U.S. District Court — Central District of Illinois

641 F. Supp. 249

Cynthia RUTAN, et al., Plaintiffs, v. The REPUBLICAN PARTY OF ILLINOIS, et al., Defendants.

No. 85-2369.

United States District Court, C.D. Illinois, Danville Division.

July 11, 1986.

COPYRIGHT MATERIAL OMITTED

Andrew Leahy, Leahy & Leahy, Springfield, Ill., for plaintiffs.

Tom Sullivan, Jeffrey D. Colman, Sidney Schenkier, Edward J. Lewis, Jenner & Block, Chicago, Ill., for defendants, Thompson, Frech, Baise, Fleiscli, Hawkins, Wright, Reilly & Quigley.

Donna Dagnall, Martin Haxel, Asst. Attys. Gen., Springfield, Ill., Roger Flahaven, Asst. Atty. Gen., Chicago, Ill., for defendants.

Robert B. Oxtoby, Van Meter, Oxtoby & Funk, Springfield, Ill., for Republican Party of Ill., D. Adams.

Bruce Stratton, Springfield, Ill., for Irvin Smith.

ORDER

BAKER, Chief Judge.

INTRODUCTION

The defendants' motions to dismiss for failure to state a claim are pending before the court. Cynthia Rutan, Franklin Taylor, Dan O'Brian, Ricky Standefer, and James Moore filed this action on July 1, 1985, in their individual capacities and on behalf of six asserted plaintiff classes. These classes include: (1) all voters in the State of Illinois; (2) all taxpayers in the State of Illinois; (3) all employees of the State of Illinois who desire a promotion; (4) all employees of the State of Illinois who desire a transfer; (5) all employees of the State of Illinois who have been laid off but not rehired; and (6) all persons who desire employment with the State of Illinois.

The defendants include the Republican Party of Illinois, two Republican Party officials, Governor James R. Thompson, and seven former or current state government officials. The state officials, including Governor Thompson, are sued individually and in their official capacities. In addition, the defendant Greg Baise is sued as representative of a purported defendant class consisting of all "directors, heads or chief executive officers ... since February 1, 1981, of departments, boards, and commissions under the jurisdiction of the Governor of the State of Illinois." The defendant Lynn Quigley is likewise sued as a representative of a purported defendant class consisting of all "liaisons" between the Governor's Office of Personnel and the departments, boards, and commissions under the jurisdiction of the Governor since February 1, 1981.

ALLEGATIONS

The gravamen of the plaintiffs' complaint is that the defendants allegedly have conspired to create an employment system whereby decisions regarding the hiring, promotion, transfer, and rehire from lay off of the State's approximately 60,000 employees under the jurisdiction of the Governor are "substantially motivated by political considerations." The allegations which pertain to the five named plaintiffs as individuals state that affiliation with the Republican Party is a key factor used in employment decisions made by the Governor's Office of Personnel.

The plaintiff Rutan, an employee of the Department of Rehabilitative Services of the State of Illinois, alleges that she applied for a promotion to a section of the department called Adjudicative Services. Rutan was not affiliated with the Republican Party at the time she sought promotion. She did not get the promotion. She alleges that the position was filled by someone who was less qualified but politically favored by the Governor's Office of Personnel.

Rutan alleges she acquired a form distributed by the Republican Party Precinct Committeeman in her area which seems to be an application for promotion. The form is attached to the complaint as Exhibit B. The plaintiff does not allege that she was called upon to complete and to submit the form in connection with her application for promotion. This form seeks information regarding the applicant's vote in the primary elections. It also asks about the applicant's membership in the Lincoln Club of Sangamon County. Finally, it asks whether the applicant would be willing to become active in the Sangamon County Republican Foundation and to work in the precinct for candidates the Central Committee recommends as qualified for local, state, and national offices. The final line of the application requires a notation of approval or disapproval by the precinct committeeman.

The plaintiff Taylor currently works in Fulton County for the Illinois Department of Transportation. He applied for a promotion in July of 1983. A less qualified and less senior person got the promotion. This less senior person had received the support and approval of the Fulton County Republican Party. The plaintiff Taylor later requested a transfer to Schuyler County. He was advised that the transfer could not be granted because the Republican Party in Fulton and Schuyler Counties had not approved the request. Taylor is not an active supporter of the Republican Party.

The plaintiff Standefer was a temporary employee in 1984. In November of 1984 he and five other people were laid off. The five other people were offered other jobs. Standefer alleges they were offered other jobs because they had Republican Party support. Standefer voted in the Democratic Party primary, presumably in 1984.

The plaintiff O'Brien worked for the State of Illinois at the Lincoln Development Center of the Department of Mental Health and Developmental Disabilities. O'Brien was laid off in 1983. He was notified in 1984 that he was being recalled to work and that his recall depended upon an approval from the Governor's office in Springfield. In mid-1985 the plaintiff was told that the recall was not approved in Springfield. The plaintiff finally secured a position with the State of Illinois, but only after he obtained the support of the Chairman of the Republican Party of Logan County. The plaintiff had voted only once in a primary election, in a Democratic primary.

The plaintiff Moore applied for a position with the State of Illinois. In August of 1980, Moore received a letter from his Republican State Representative. This letter is attached to the complaint as Exhibit C. The letter explains to Moore that he should get the endorsement of the Republican County Chairman and the Precinct Committeeman to further his application. The plaintiff alleges that while he was attempting to get a position with the state, Victor English, the son of the current Chairman of the Polk County Republican Central Committee, Brian Burk, the son-in-law of the Vice-Chairman of the Precinct Committeewoman of the Polk County Republican Central Committee, and Dorris Thomas, Moore's Republican Precinct Committeeman, have all been hired by the state government in positions for which the plaintiff Moore was qualified.

DISCUSSION

I.

The plaintiffs contend that the defendants' use of political considerations in employment decisions offends the plaintiffs' constitutional rights to free speech and association, due process and equal protection, and to a republican form of government. The strongest of the plaintiffs' claims is that the defendants' conduct violates the plaintiffs' First Amendment rights to free speech and association. The plaintiffs rely on the Supreme Court decisions of Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) and Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and for the proposition that public employment cannot be conditioned on an employee's affiliation with a particular political party that is in power. The Supreme Court in both Elrod and Branti declared that the practice of firing employees who were hired by a supplanted administration violated the First Amendment.

The defendants respond that the Elrod and Branti decisions are limited to political firings; they do not apply to the use of political considerations in hiring, promoting, transferring, and rehiring state employees. They argue that the use of political considerations in aspects of public employment other than punitive actions like discharge is constitutionally permissible. The court is persuaded that the defendants' position is correct and will dismiss the Section 1983 claims alleging violations of the First Amendment for the following reasons.

The Supreme Court explicitly limited its rulings in both Branti and Elrod to political firings. Branti v. Finkel, 445 U.S. 507, 513 n. 7, 100 S.Ct. 1287, 1292, 63 L.Ed.2d 574 (1980), and Elrod v. Burns, 427 U.S. 347, 353, 96 S.Ct. 2673, 2679, 49 L.Ed.2d 547 (1976). Mindful of this, federal courts have rejected attempts to extend Elrod and Branti beyond firings or similar punitive personnel actions.¹ Two courts of appeal have recently considered the question of the use of patronage. Avery v. Jennings, 786 F.2d 233 (6th Cir.1986), and LaFalce v. Houston, 712 F.2d 292 (7th Cir.1983), cert. denied 464 U.S. 1044, 104 S.Ct. 712, 79 L.Ed.2d 175 (1984). These courts refused to extend Elrod and Branti to prohibit the use of political factors in awarding contracts and in hiring public employees.

In LaFalce v. Houston, 712 F.2d 292 (7th Cir.1983), cert. denied, 464 U.S. 1044, 104 S.Ct. 712, 79 L.Ed.2d 175 (1984), the Seventh Circuit affirmed the district court's dismissal of a complaint in which a contractor alleged he had been improperly denied a public contract based upon political considerations. The court in LaFalce reasoned that Elrod's per se prohibition of political firings is based on the principle "that public employees would be discouraged from expressing their true political views if it might cost them their jobs." Id. at 293. In rejecting plaintiff's claim that unsuccessful contractors similarly would be discouraged from expressing their political beliefs, the court considered the extent to which patronage practices interfere with the expression of political views. Id. at 294. The court found the "extent of the likely interference" insufficient to raise constitutional concerns.

If the contractor does not get the particular government contract on which he bids, because he is on the outs with the incumbent ..., it

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