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March 9, 1973


The opinion of the court was delivered by: Will, District Judge.


This is a civil rights action brought pursuant to 42 U.S.C. § 1983 and 1985 by Arlen Gould, the Assistant to the Director and Special Education Coordinator of the Governor's Office of Human Resources of the State of Illinois (hereinafter "GOHR") and the Executive Secretary of the Governor's Council on Developmental Disabilities of the State of Illinois, against the Governor of the State of Illinois, Daniel Walker, and Squire J. Lance, the Acting Director of GOHR. The plaintiff seeks: 1) a declaration that the proposed termination of his employment with the State of Illinois is violative of his constitutional rights and that because of this constitutional violation he is entitled to remain in his position with the State; 2) a preliminary and permanent injunction restraining the defendants from terminating him in his position; and 3) a judgment of $100,000 for damages suffered by the plaintiff due to the proposed termination. The defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted.

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.

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 critical issue in the instant case with respect to Count I is whether a state employee with substantial responsibility and authority such as Gould is covered by the Lewis holding. In the majority opinion by Judge Stevens, the plaintiffs were characterized as "non-policymaking employees" and the opinion was limited to such employees. In discussing the point that political affiliation may be a relevant and proper qualification for certain governmental positions and may justify an otherwise impermissible termination, Judge Stevens stated:

    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 ...

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