Tarpley v. Keistler

• Decision Date: 13 August 1999
• Docket Number: No. 98-2369,98-2369
• Parties: (7th Cir. 1999) ROBERT ALAN TARPLEY, Plaintiff-Appellant, v. FRANK KEISTLER, JR. and UNION COUNTY REPUBLICAN CENTRAL COMMITTEE, Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 788

188 F.3d 788 (7th Cir. 1999)

ROBERT ALAN TARPLEY, Plaintiff-Appellant, v. FRANK KEISTLER, JR. and UNION COUNTY REPUBLICAN CENTRAL COMMITTEE, Defendants-Appellees.

No. 98-2369

United States Court of Appeals, Seventh Circuit

Argued January 22, 1999

Decided August 13, 1999

Appeal from the United States District Court for the Southern District of Illinois, Benton Division. No. 93 C 4092--J. Phil Gilbert, Judge.

Before CUDAHY, FLAUM and RIPPLE, Circuit Judges.

CUDAHY, Circuit Judge.

For a quarter century now, well-meaning Illinois citizens periodically have turned to the courts in attempts to rid the state of an age-old rite: rewarding political supporters with the spoils of power, notably, but not exclusively, public employment. See, e.g., O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996); Rutan v. Republican Party of Ill., 497 U.S. 62 (1990); Elrod v. Burns, 427 U.S. 347 (1976); Shakman v. Democratic Org. of Cook County, 569 F. Supp. 177 (N.D. Ill. 1983). Despite these efforts, patronage hiring is alive and well in Illinois. See Cynthia Grant Bowman, The Law of Patronage at a Crossroads, 12 J.L. & Pol. 341, 356-58 (1996). In this case, Robert Tarpley takes on the patronage machine. He mounts yet another challenge to yet another scheme designed by the party in power to hire workers who share its political convictions. We considered his claims once before, leaving open some possibility of victory. See Tarpley v. Jeffers, 96 F.3d 921 (7th Cir. 1996). This time, Tarpley's effort is again gallant, but falls short. We affirm the district court's order granting summary judgment to the defendant.

I.

The facts of the case have not changed since the first time we considered it. See id. at 925- 27. We recite them again here for ease of reference.

In 1990, the Supreme Court decreed that the use of political party affiliation as a criterion for public employment violates the First Amendment unless, generally speaking, the job involves some element of policy-making. See Rutan, 497 U.S. at 74-76. In response, the then-Governor of Illinois, Jim Thompson, issued orders requiring the state to base all hiring decisions for jobs covered by Rutan on merit and qualifications. The state also agreed to publish a list of Rutan- exempt positions as part of the settlement agreement with the Rutan plaintiffs. In 1991, Illinois's new Governor, Jim Edgar, determined that Rutan did not reach decisions about employment in temporary public jobs, and his administration went about filling temporary positions with Republican loyalists. To this end, administration officials staged a series of meetings at which they informed Republican activists that political affiliation could be considered in filling vacancies for temporary positions. Frank Keistler, the long-time Union County Republican Central Committee Chairman, attended a number of these meetings. Administration representatives told Keistler and other attendees that temporary positions were exempt from the strictures of Rutan and gave them a list of contacts in various departments to whom they could forward recommendations to fill vacant temporary slots.

The Choate Mental Health Center, a state- operated hospital located in Union County, employed two power plant maintenance workers. In spring 1992, following the death of one and the promotion of the other, Choate sought to fill both vacancies on a permanent basis. The Department of Mental Health, which managed Choate, authorized Choate to fill the positions on a temporary basis only. Keistler got wind of the temporary vacancies and called Natalie Bales, a Department of Mental Health personnel officer, to recommend for one of the jobs Harold Blessing, a Republican precinct worker. Keistler also spoke with Janice Cellini in the Governor's Office of Personnel about Blessing's interest in the position. Following the normal procedures used to fill all vacancies, Bales called her contact in the Governor's office (not Cellini) about the Choate position and was given Blessing's name. Bales then forwarded Blessing's information to Alice Kerns, the personnel officer at Choate. Blessing started work four days later. No interviews were conducted for the temporary position, and it was not publicized in any way.

Later that year, the Department made the maintenance positions permanent. Neither the Department nor Choate (nor any other state agency) advertised the job. Blessing and eight others, including Tarpley, interviewed for the position. Blessing got the job, at least in part because he had gained valuable experience during his months as a temporary employee in the same position.¹

Tarpley sued under 42 U.S.C. sec. 1983 alleging state intrusion into his First Amendment right to freedom of political association. Specifically, he claimed that Blessing got the temporary and consequently the permanent position because Blessing was a Republican, violating the clear mandate of Rutan. Tarpley named both state officials and Republican party functionaries as defendants. The district court granted summary judgment in favor of all defendants with respect to the hiring decision for the permanent position, and we affirmed. See Tarpley, 96 F.3d at 928-30. We also held that the state defendants were protected by qualified immunity with respect to bias claims related to the temporary position. See id. at 927-28. However, we reversed the district court's grant of summary judgment in favor of the Republican Party defendants on the temporary hiring claims and remanded the case "to determine whether Tarpley has standing to challenge the temporary hire. If Tarpley has standing, he may attempt to prove liability and injury arising from either the direct loss of the temporary position itself or, what is no doubt much more important to him, the loss of the opportunity to obtain a 'leg up' in the competition for the permanent job." Id. at 931.

On remand, the district court determined that Tarpley had standing. Keistler then moved for summary judgment on the ground that he never acted under color of state law, attaching an affidavit to his motion in which he generally denied having any power to make state government hiring decisions and denied the existence of any conspiracy giving him such authority. The district court granted the motion, holding that Keistler only recommended that Choate hire Blessing and that this recommendation was not enough to establish state action: "the plaintiff must at least offer admissible evidence that the party defendants did more than simply advocate that the State hire Harold Blessing. In fact, the party defendants must have a hand in actually hiring Harold Blessing based upon Blessing's political affiliation." Appellant's Br. at A-7 (Dis. Ct. Mem. & Ord., Apr. 30, 1998). The district court further held that "[i]f the plaintiff has offered no admissible evidence from which a reasonable jury could determine that the party defendants had the authority to hire Robert Alan Tarpley or Harold Blessing, then the party defendants cannot be liable." Id. at A-8 (Dis. Ct. Mem. & Ord., Apr. 30, 1998). The district court relied heavily--almost exclusively, in fact--on Vickery v. Jones, 100 F.3d 1334 (7th Cir. 1996), cert. denied, 520 U.S. 1197 (1997).

Tarpley again appeals. We review the district court's grant of summary judgment de novo, using the same standards as the district court and viewing the evidence in the light most favorable to the non-moving party. See, e.g., Sheik-Abdi v. McClellan, 37 F.3d 1240, 1243 (7th Cir. 1994). Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).

II.

Section 1983 provides in pertinent part that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and law, shall be liable to the party injured in an action at law." 42 U.S.C. sec. 1983. A sec. 1983 plaintiff must show, then, that a defendant acted under color of state law. To state a sec. 1983 claim based on a Fourteenth Amendment violation-- as here, where Tarpley claims that Keistler violated his First Amendment rights as applied to the states through the Fourteenth Amendment--the challenged conduct must also constitute state action. These two requirements-- color of law and state action--are functionally equivalent. See, e.g., Thomas v. Pearl, 998 F.2d 447, 450 (7th Cir. 1993).

State action is not limited to the conduct of state officials; the conduct of private parties can, under certain circumstances, constitute state action. The Supreme Court has articulated a number of tests to determine whether a private party should be considered a state actor. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982) (listing various tests). All of the tests, despite their different names, operate in the same fashion: "Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961); see also Dunham v. Frank's Nursery & Crafts, Inc., 919 F.2d 1281, 1284 (7th Cir. 1990).

Several factual scenarios already considered by the Supreme Court are particularly instructive in the matter at bar. Injured parties can attempt to prove that a private party conspired with state actors to deprive them of their constitutional rights. In Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970), for example, a white school teacher alleged that a restaurant had conspired with the local police to deny her service in the restaurant and to later arrest her for being in the company of her black students. The Court held that the "involvement of a state official in such a conspiracy plainly...