Selch v. Letts

• Decision Date: 21 September 1993
• Docket Number: No. 92-2558,92-2558
• Parties: John W. SELCH, Plaintiff-Appellant, v. Christine W. LETTS, in her official capacity as the Director of the Indiana Department of Highways; Daniel A. Novreske, in his official capacity as the Chief Deputy Director of the Indiana Department of Highways; Robert D. Boxell, in his official capacity as the Chief of the Personnel Services Division of the Indiana Department of Highways; and Frederick Glass, in his official capacity as the Governor's Executive Assistant for Transportation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1040

5 F.3d 1040

John W. SELCH, Plaintiff-Appellant, v. Christine W. LETTS, in her official capacity as the Director

of the Indiana Department of Highways; Daniel A. Novreske,

in his official capacity as the Chief Deputy Director of the

Indiana Department of Highways; Robert D. Boxell, in his

official capacity as the Chief of the Personnel Services

Division of the Indiana Department of Highways; and

Frederick Glass, in his official capacity as the Governor's

Executive Assistant for Transportation, Defendants-Appellees.

No. 92-2558.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 7, 1993.

Decided Sept. 21, 1993.

Peter G. Tamulonis (argued), John B. Drummy, Briane M. House, Kightlinger & Gray, Indianapolis, IN, for plaintiff-appellant.

David C. Campbell, Sharon L. Groeger (argued), Bingham, Summers, Welsh & Spilman, Indianapolis, IN, for defendants-appellees.

Before CUMMINGS and KANNE, Circuit Judges, and EVANS, Chief District Judge. ^*

KANNE, Circuit Judge.

For some, the mention of the phrase "political patronage" may conjure up distasteful and unpleasant thoughts of party faithful being rewarded for an election victory with the "spoils" of government jobs. Nevertheless, the fact is the effective implementation of public policy sanctioned by the voters (and some say the survival of a viable two-party political system) depends on a newly elected administration placing politically loyal individuals in certain government positions. Of course, following the ouster of the "in party," the initial aspect of the implementation of political patronage typically results in the "creation of vacancies" in the government work force. In 1988, Indiana voters rejected the incumbent Republican administration and elected a Democratic governor. Thus, we are required in this appeal to decide whether John Selch's discharge from his position as an Indiana highway subdistrict superintendent, shortly after the new Democratic administration came into power, was a constitutionally proper exercise in the practice of political patronage.

I.

Until 1989, through both Democratic and Republican administrations, the Indiana Department of Highways ¹ operated under a patronage system which required signed political "clearance cards" for all Department employee hirings. Selch concedes that during a Republican administration in 1984 his status as a Republican loyalist enabled him to secure the position of Highway Engineering Assistant III with the Department. Later that year, he was promoted to Highway Maintenance Supervisor V, which increased his responsibilities from the performance of quality inspections to the supervision of a road crew of ten to twelve workers. Finally, in 1986, the Highway Commissioner elevated Selch to the position of Superintendent of the Greencastle Subdistrict, one of 37 such geographic highway zones in Indiana.

By the fall of 1988, there began to emerge a real possibility that a Democrat would occupy the Indiana governor's mansion for the first time in twenty years. Fearful that a new administration would not appreciate his loyalty to the Republican party, Selch requested a demotion to what he believed was the "politically safe" position of unit foreman; his request was denied.

In November of 1988, possibility became reality--Democrat Evan Bayh was elected governor. Governor Bayh had campaigned on the need to increase the efficiency of government in general, including that of Indiana's highway maintenance, construction and repair operations. The Indiana State Employees' Association's endorsement of Bayh was based, in part, on his pledge to eliminate waste and mismanagement within the state highway operations.

In carrying out a legislatively enacted reorganization, Governor Bayh appointed Christine Letts to serve as the Director of the new Department of Transportation. In late January of 1989, with the Democratic administration in place, Selch sent a letter to Letts requesting that he be retained as the Greencastle subdistrict superintendent. However, membership in the Democratic Party had replaced membership in the Republican Party as an indispensable qualification for the position of subdistrict superintendent. ² In late June 1989, receiving the same treatment as his 36 fellow Republican subdistrict superintendents, Selch was discharged from his position and replaced with a Democrat.

Less than a month later, Selch filed suit in state court. The case was then removed to the United States District Court for the Southern District of Indiana. His claim came under 42 U.S.C. Sec. 1983. Seeking to recover his former position of subdistrict superintendent, Selch alleged that he was discharged on the basis of his political affiliation, in violation of his First Amendment rights to freedom of speech and association as guaranteed through the Fourteenth Amendment.

II.

To succeed in his claim of improper dismissal or demotion based on constitutionally protected behavior, Selch had to prove that his status as a Republican was a motivating factor in the decision to discharge him from the position of subdistrict superintendent. Nekolny v. Painter, 653 F.2d 1164, 1167 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982). Upon that showing, the burden shifted to the defendants to demonstrate that "party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574 (1980).

Following a bench trial, the district court entered judgment in the defendants' favor, finding that although politics was a motivating factor in Selch's dismissal, political affiliation was a proper requirement for the position of subdistrict superintendent. 792 F.Supp. 1502. On appeal, the defendants do not challenge the district court's finding that the dismissal was politically motivated. However, Selch contends that the district court erred in holding that the position of subdistrict superintendent was one for which political affiliation was a constitutionally valid requirement.

III.

The issue of whether political beliefs are a proper consideration for a particular government position originated in the 1970's case of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). In Elrod, the Supreme Court held that the decision of the sheriff of Cook County, Illinois, to discharge certain employees based on whether or not they worked on his campaign violated their First Amendment rights of freedom of speech and association. Yet the Court also held that an exception to the constitutional prohibition on patronage employment practices exists when those rights are outweighed by the government's need for political loyalty in employees, as is the case in both policymaking id. at 367, 96 S.Ct. at 2687 (plurality opinion), and confidential positions. Id. at 374-75, 96 S.Ct. at 2690 (Stewart, J., concurring).

In Branti, the Supreme Court abandoned the exclusive use of these terms to describe the types of positions exempt from patronage restrictions:

Under some circumstances, a position may be appropriately considered political even though it is neither confidential nor policymaking in character.... It is equally clear that party affiliation is not necessarily relevant to every policymaking or confidential position.... In sum, the ultimate inquiry is not whether the label "policymaking" 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.

445 U.S. at 518, 100 S.Ct. at 1294-95. We have phrased the relevant inquiry as "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 the goals or their implementation." Nekolny, 653 F.2d at 1170.

The district court found Nekolny's reformulation of Supreme Court precedent of little assistance.

At least in terms of Mr. Selch's communications with his superiors, it would be a stretch to say that his job entailed "meaningful input into government decision making." Except for the information he supplied in conjunction with the budgeting process, there was little evidence that he was relied upon to provide critical information or other "input" to the hierarchy of the highway department. Moreover, if the term "goals" is broadly construed, there was little room for disagreement over Mr. Selch's goals. Broadly put, Mr. Selch's goal was simply to insure that the road construction and maintenance work in his subdistrict was effectively and speedily undertaken. (Citations omitted).

Nonetheless, the district court held that, in light of the significant amount of responsibility involved and the ability to "threaten the goals of the in-party," political affiliation was an appropriate requirement for the subdistrict superintendent position.

Selch argues on appeal that by focusing on those two factors, the district court's opinion conflicts with Supreme Court and Seventh Circuit precedent. Reviewing this question of law de novo, we find no error.

IV.

In addressing the ultimate inquiry of whether political affiliation is an appropriate requirement for Selch's position, the district court appropriately took into account the amount of responsibility the subdistrict superintendent position entailed. The Supreme Court has recognized that political patronage addresses "the need for political loyalty of employees, not to the end that effectiveness and efficiency be insured, but to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate." Elrod, 427 U.S. at 367, 96 S.Ct. at 2687 (plurality opinion). As an employee's level of...