The opinion of the court was delivered by: Will, District Judge.
The material facts of the case are not in dispute. Both sides
have submitted numerous affidavits which in their essential
allegations do not contradict each other. The plaintiff in his
own affidavit states that in January 1970 he was hired as Special
Education Coordinator of GOHR by Paul Wisner, who was then the
Deputy Director of GOHR. In this position, he helped parents of
handicapped children find State programs which would be of
assistance to them and their children and thereby developed an
expertise in the administrative and legislative programs in
special education. He carried on communication with not only
parents but also parents' organizations, school personnel and
various professional people. As a result of these contacts, he
was able to secure federal funding for a model program to compare
costs of special education programs with those of general
education. He is presently the project director of this $400,000
program.
Gould further states in his affidavit that he has prepared
various studies regarding a number of social service programs
which the State either had in existence or had under
consideration. As a result of one of these studies, the
Governor's Council on Developmental Disabilities was created.
Gould was appointed Executive Secretary of this office, which
disburses approximately $800,000 annually for handicapped
children and adults, by Paul Wisner, who was appointed its
Chairman by then Governor Richard Ogilvie.
Subsequent to Gould's employment at GOHR, Paul Wisner was
promoted to become its Director. In his affidavit, Wisner states
that he had personal authority to discharge Gould and that Gould
was given the title Assistant to the Director only for the
purposes of allowing him the flexibility to deal with matters
outside the area for which he was originally hired. Wisner
further states that Gould would make policy recommendations with
respect to those matters on which he was working but that he
(Wisner) would make all decisions with respect to policy except
for unusual situations where the policy decisions were made by
the Governor himself.
The defendants have submitted the affidavits of several
employees of GOHR and consultants to that agency which set out in
some detail both Gould's organizational position and some of his
official activities. Donald Androzzo, a consultant to GOHR for
the specific purposes of analyzing the decision making and
organizational structures of GOHR, exists in an affidavit Gould's
specific functions at GOHR. They are: 1) Director of Public
Relations; 2) Director of Press Relations; 3) Director of Special
Education Project; 4) Director of Every Needy Child Program; 5)
Editor of Publications; and 6) Director of Latin American
Cultural Exchange Program. In addition, Androzzo notes extensive
out of state travel by Gould to Washington, D.C., California,
Puerto Rico, and Mexico. During these trips, Gould represented
the State in discussions leading to cultural exchanges between
Illinois and both Mexico and Puerto Rico; he represented the
State seeking federal assistance to various Illinois programs;
and he attended conferences as an official representative of the
State.
The affidavits of Steven Bishop, Deputy Director of GOHR,
Marian Tingler, personal secretary to Gould, C. James McCoy,
Spanish American Affairs Specialist at GOHR, David Finkel,
consultant to GOHR on the Special Education Program, Mari Kathryn
Wade, Special Consultant to GOHR for the Developmental
Disabilities Program, and Gloria T. Wailes, Public Information
Specialist at GOHR, substantially affirm the allegations of the
Androzzo affidavit.
Gould submitted a second affidavit which disagreed with and
purported to clarify some of the points made in the various
affidavits submitted by the defendants. However, the disagreement
can be characterized as being largely technical or semantic.
There is no disagreement that Gould holds a very responsible
position with considerable authority and influence and that he
has on a number of occasions represented the State in an official
capacity.
On January 17, 1973, Gould was contacted by Squire J. Lance,
who had been appointed Acting Director of GOHR by the recently
elected Governor, Daniel Walker. At this meeting, Lance asked
Gould for his resignation. Two days later, Gould wrote to Lance
explaining why he would not resign and requesting the reasons why
the defendants sought his resignation. Thereafter, Gould received
a letter from Lance dated January 23, 1973, which informed Gould
that he would be terminated as of January 31, 1973, but which
gave no reasons for this termination.
Affidavits by Ron Maydon and Alphonse Gonzales suggest that
Gould was asked to resign and thereafter terminated because he
had supported former Governor Ogilvie in the recent election. The
defendants have not contradicted these affidavits. Indeed, they
have offered no reasons for Gould's termination.
There are three theories upon which plaintiff bases his cause
of action. In Count I of the complaint, Gould contends that his
termination "was based upon his political affiliation with the
Republican Administration . . . and was done for the purpose of
providing a vacancy for a Democratic supporter of Governor
Walker, in violation of plaintiff's right of free speech and
freedom of association, as protected by the due process clause of
the Fourteenth Amendment to the United States Constitution." In
support of this count, plaintiff relies upon Illinois State
Employees Union Council 34, American Federation of State, County
and Municipal Employees 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).
In that case, the Seventh Circuit held that non-policy making
employees of the state government are entitled to federal relief
if they can prove that they were discharged because of their
political affiliation and their refusal to transfer their
political allegiance and that consequently their rights to
freedom of speech and assembly were violated. The individual
plaintiffs in Lewis were employed in the office of the Democratic
Secretary of State of Illinois, Paul Powel in non-civil service
positions such as clerks, janitors and license examiners. All
received letters of termination which gave no reason for the
terminations immediately after Republican Governor Ogilvie
appointed Republican John Lewis as Secretary of State. The suit
was filed pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343
charging that the announced terminations came about solely
because of their party affiliation and because they refused to
support the Republican Party in violation of their First
Amendment rights to freedom of speech and association. The
District Court granted summary judgment for the defendant, and
the Seventh Circuit reversed and remanded the case to the trial
court.
The second suggested justification [that political
affiliation is a relevant qualification for certain
governmental positions] will also have different
validity for different employees. Plaintiffs properly
do not challenge the public executive's right to use
political philosophy or affiliation as one criterion
in the selection of policy-making officials.
Moreover, considerations of personal loyalty, or
other factors besides determination of policy, may
justify the employment of political associates in
certain positions. It is difficult to believe,
however, that any such justification would be valid
for positions such as janitors, elevator operators or
school teachers. Thus, again, justification is a
matter of proof, or at least argument, directed ...