Wren v. Jones

• Decision Date: 12 March 1981
• Docket Number: Nos. 79-2254,79-2324,80-1131,80-1132,s. 79-2254
• Citation: 635 F.2d 1277
• Parties: Cecil WREN et al., Plaintiffs-Appellees-Cross-Appellants, v. Nolan JONES et al., Defendants-Appellants-Cross-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1277

635 F.2d 1277

Cecil WREN et al., Plaintiffs-Appellees-Cross-Appellants, v. Nolan JONES et al., Defendants-Appellants-Cross-Appellees.

Nos. 79-2254, 79-2324, 80-1131, 80-1132.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 1980.

Decided Dec. 10, 1980.

Rehearing and Rehearing En Banc Denied March 12, 1981.

William S. Hanley, Springfield, Ill., for defendants-appellants-cross-appellees.

Robert L. Stern, Chicago, Ill., for plaintiffs-appellees-cross-appellants.

Before SWYGERT and CUDAHY, Circuit Judges, and GRANT, Senior District Judge. ^*

PER CURIAM.

This case involves allegations that twenty-six employees of the State of Illinois were discharged for political reasons in violation of their right to free association, due process and equal protection as guaranteed by the First and Fourteenth Amendments.

Plaintiffs are twenty-six state employees who, according to defendants, were necessarily "laid off;" twenty-five from the Illinois Department of Transportation (IDOT), and one from the Illinois Department of Mental Health (DMH). Defendants are either current or past officers or employees of the IDOT, DMH or Illinois Department of Personnel (IDOP). ¹

I. Background

In 1969, a lawsuit captioned Bradley, et al. v. Cellini, et al. ² was filed in an Illinois State Circuit Court. The Bradley case was a mandamus action by former employees who had been discharged in May of 1969 from the IDOT and DMH. In November of 1968, Miriam Ringo, the Director of Personnel under the administration of Governor Shapiro, a Democrat, had extended civil service protection, formally called Jurisdiction B of the Personnel Code, to the positions occupied by the Bradley plaintiffs. However, in January 1969, Richard B. Ogilvie, a Republican, became Governor, and in February of 1969 his Director of Personnel expunged former Director Ringo's extension of Jurisdiction B. Between April and June 1969, all Democratic employees in the IDOT maintenance and traffic units, approximately 3,000 workers, were discharged as "not acceptable to the agency" and were replaced by Republican workers. Twenty-five of the plaintiffs in the suit here before us were members of this group of discharged workers. On the other hand, the Bradley plaintiffs consisted of 27 ³ maintenance and traffic workers from District 9 of the IDOT and three workers from the DMH who had been terminated by the Ogilvie administration.

On April 9, 1973, Illinois Circuit Judge Paul Verticchio issued an opinion holding that the termination of the Bradley plaintiffs was without cause, and contrary to the Personnel Code, as well as in violation of the rules of the Department of Personnel. Judge Verticchio thereupon held that the Ogilvie administration's expungement of the Jurisdiction B extension was "void and of no effect." As part of the court-ordered remedy, the heads of IDOT, DMH and IDOP were directed to:

restore and return each of the (Bradley) Plaintiffs to the position and title held by such Plaintiff on the date of his discharge from said position or to discharge each Plaintiff in accordance with The Personnel Code and Rules of the Department of Personnel. ⁴

That writ of Mandamus, entered May 30, 1973, added that "FAILURE TO DO SO WILL SUBJECT YOU TO PUNISHMENT FOR CONTEMPT OF THIS COURT."

While the Bradley litigation was pending, Governor Ogilvie's Director of Personnel on November 28, 1972, once again extended Jurisdiction B protection to the relevant positions. Coming full circle politically, the new Democratic administration of Governor Walker, in November 1973, acting thru their new Director of Personnel and a defendant in the case at bar, again attempted to remove the positions from civil service coverage, but the Illinois Civil Service Commission refused to permit the removal. It is apparent that each successive administration, since 1968, has attempted to remove the patronage employees inherited from the former administration, place its own patronage people in those positions and then to extend civil service coverage to its own new employees.

In June of 1973, the State of Illinois was experiencing financial restrictions for fiscal year 1974 (July 1, 1973-June 30, 1974). The actual amount approved by the legislature for personnel services in the IDOT's Maintenance and Traffic Units was significantly smaller than had been requested. ⁵ Consequently, approximately 1,000 state employees were laid off in June 1973, 540 of whom were IDOT employees. In this restrictive fiscal setting, ⁶ the defendant State officials were faced with the Bradley court's mandate to reinstate twenty-five workers, or face the possible consequences of punishment for Contempt of the Sangamon County Circuit Court.

II. Implementation

Under the Bradley order, the officials in charge of the IDOT and DMH were then confronted with the specter of having 50 employees to do work formerly performed by 25 employees. They determined that it was necessary to layoff a number of employees equivalent to the number of those returning Bradley plaintiffs. The parties have stipulated that but for the entry of the Bradley order, none of the plaintiffs in the case at bar were scheduled to be laid off for the fiscal year ending June 30, 1973. In selecting those employees for "lay off," the defendant Robert Rhoads, the Field Officer of the IDOP, made the initial determination that those persons who actually replaced the Bradley plaintiffs in 1969 should be chosen. After consultation with Berwyn Hanley, an assistant to the Director of Personnel at the IDOP's downtown Springfield office; with Brian Hannigan, Assistant Secretary of the IDOT; Michael Waters, who served as liaison between the IDOP and the Illinois Attorney General's office; and Assistant Attorney General Lee Martin, the layoffs were implemented in the following fashion: in the IDOT, 15 persons who directly replaced the Bradley plaintiffs were found to still be in the positions formerly held by the Bradley plaintiffs; six persons were replacements for men who had actually replaced the Bradley plaintiffs in 1969; and, in four instances where the position could not be identified precisely, persons were laid off on a random basis from the returning Bradley plaintiffs' team section and class, with consideration given to performance. In the DMH, the last person hired was laid off. Thereafter these twenty-six employees (the Wren plaintiffs) filed the present action for damages and injunctive relief under 42 U.S.C. § 1983, alleging violation of their rights under the First and Fourteenth Amendments. The case was tried without a jury and during trial the defendants agreed to reinstate the plaintiffs pending final adjudication of the case. On August 4, 1978 the district court entered its Memorandum Order ⁷ finding that defendants had violated plaintiffs' Due Process and First Amendment rights and ordering the then incumbent agency heads, Kramer, Boys, and deVito, to reinstate the plaintiffs. The district court also found defendants Hannigan and Rhoads were individually liable to the plaintiffs discharged from the IDOT for violation of their First Amendment rights, but the court reserved judgment on the same question as to defendants Bond, Miley and Shelton. The court dismissed defendants Jones, Knox and Ronan. On September 17, 1979, the district court entered an order assessing approximately $393,000 in damages against Rhoads and Hannigan, in addition to costs and attorney fees.

Defendants Hannigan and Rhoads have appealed the award of damages and defendants Boys, Kramer and deVito have appealed the reinstatement order. Plaintiffs have cross-appealed the dismissal of defendants Jones, Knox and Ronan as well as the failure to award overtime damages and the allocation of attorney fees. The State of Illinois, although not a party, has been permitted to file a brief as Amicus Curiae, wherein the arguments of defendants are supported.

III. First Amendment

As in the court below, plaintiffs present two First Amendment arguments. First, that their separation from State service was in furtherance of a patronage program, violating their right to free association under the rationale of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Illinois State Employees Union, Council 34 v. Lewis, 473 F.2d 561 (7th Cir. 1972), cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973). Secondly, plaintiffs assert that defendants denied them re-employment opportunities in furtherance of a patronage program.

Initially, we will review those cases that have addressed the conflict between political patronage and the First Amendment.

In Illinois State Employees Union, Council 34 v. Lewis, supra, a group of state employees who held non-civil service, non-confidential positions were discharged by a new Republican Secretary of State in conjunction with the Ogilvie administration. The discharged employees sought reinstatement and backpay, alleging violation of the First and Fourteenth Amendments. The district court, however, entered summary judgment for the defendant state officials. In reversing and remanding for further proceedings, then Circuit Judge, now Justice Stevens, held that the dismissal of non-civil service public employees due to their political associations or beliefs constitutes a violation of the First and Fourteenth Amendments. Judge Stevens commented on the burden of proof involved when First Amendment rights are partially curtailed:

If the conditions attached to public employment merely involve some curtailment-as opposed to abject surrender-of First Amendment rights, interests of the State "if strong enough" may justify the condition. As a procedural matter, the burden of establishing such justification rests upon the defendant. In view of the importance which the Court has consistently attached to the First Amendment rights of the citizenry, that burden is a heavy one. Without such justification, the foregoing cases...