Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. IP 73 C 21 JAMES E. NOLAND, Judge.
Fairchild, Circuit Judge, Cummings, Circuit Judge, and Matthes, Senior Circuit Judge.*fn*
MATTHES, Senior Circuit Judge.
This case was spawned by Illinois State Employees Union v. Lewis, 473 F.2d 561 (7th Cir. 1972), cert. denied, 410 U.S. 943, 35 L. Ed. 2d 609, 93 S. Ct. 1370 (1973). In Lewis, this court generally disapproved on first amendment grounds patronage dismissals of non-policy making public employees, while affirming the right of a public executive to use political philosophy or affiliation as a basis for discharging policy making officials. A resolution of the present controversy turns on the correctness of the district court's finding that plaintiffs, former employees of the Indiana Department of Public Instruction, occupied policy making positions.
The defendant-appellee, Harold Negley, a Republican, was elected State Superintendent of Public Instruction for a two year term at the November 1972 general election, defeating the incumbent Democrat, John J. Loughlin. The Superintendent-elect assumed the office on March 15, 1973.*fn1
In January of 1973, Superintendent-elect Negley caused plaintiffs Jonetta C. Holland, E. Marie (Visher) Bonvillain, William Wallace, Ronald E. Drury, C. Michael Pitts, John J. Day, Ross B. Norrick, and others*fn2 to be notified that their positions in the Department of Public Instruction would be terminated, effective March 15, 1973. This action precipitated the filing of the present suit on January 17, 1973, by the Indiana State Employees Association, Inc., an Indiana not-for-profit corporation, and Jonetta C. Holland, E. Marie Bonvillain, and William Wallace, individually and on behalf of all others similarly situated, against Negley and the incumbent Superintendent, Loughlin.
Jurisdiction was predicated on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) and (4). Plaintiffs alleged that their termination was motivated by their political party affiliation as Democrats and that discharge for such reason was violative of their rights to freedom of association, equal protection, and due process, as secured by the first and fourteenth amendments to the United States Constitution and by Art. 1, §§ 9, 12 and 23 of the Indiana Constitution. Plaintiffs sought an injunction, declaratory relief, and damages.
An amended complaint was filed on January 19, 1973, in which Ronald E. Drury, C. Michael Pitts, John J. Day, and Thomas Charles Abeel joined as individual plaintiffs.
Pursuant to plaintiffs' motion for a preliminary injunction, the district court, Judge Noland, heard evidence on March 2 and March 8, 1973. At the conclusion of the hearing on March 8, the judge orally denied the motion for a preliminary injunction. A memorandum opinion was filed on March 16, 1973, and is reported at 357 F. Supp. 38 (S.D. Ind. 1973). Thereafter, pursuant to motion of plaintiffs, the court dismissed the action as to defendant John J. Loughlin. The court also ordered that the cause "not proceed as a class action as to all similarly situated non-policy making employees of the Department of Public Instruction." At the same time, however, the court provided that additional parties plaintiff might be joined at any time prior to July 9, 1973. One other discharged employee, Ross B. Norrick, was joined as a party plaintiff by order entered on July 9, 1973. By stipulation of the parties, approved by the court, it was agreed that all evidence received upon the application for preliminary injunction would become a part of the record at the trial of the cause on the merits.
The case was tried before Judge Noland without a jury on July 9, 10 and 11, 1973. On October 24, 1973, Judge Noland filed his judgment and memorandum opinion, reported at 365 F. Supp. 225 (S.D. Ind. 1973). As reference to the opinion will disclose, the district court concluded that plaintiffs were not entitled to any relief, entered judgment in favor of the defendant Negley, and dismissed plaintiffs' complaint. Plaintiffs have appealed from that judgment.
The extensive and comprehensive trial court proceedings focused upon three questions: 1) whether the terminated plaintiffs occupied non-policy making positions; 2) if so, whether their affiliation with and allegiance to the Democratic Party was the cause of their termination; and 3) whether their termination, based upon their political association, was unconstitutional. The district court, in a soundly reasoned opinion, ruled squarely against plaintiffs on the first issue, and then proceeded to discuss but not directly decide the second and third issues.
In this court, plaintiffs first contend that "the finding of fact by the district court that plaintiffs Day, Pitts, Wallace, Bonvillain, Drury and Norrick*fn3 occupied policy making positions * * * was clearly erroneous, without substantial evidentiary support and contrary to the clear weight of the evidence."
Rule 52(a), Fed. R. Civ. P., provides that upon appellate review a district court's "findings of fact shall not be set aside unless clearly erroneous." A precise delineation of the scope of review under the "clearly erroneous" standard of Rule 52 is fraught with some difficulty; indeed, Judge Learned Hand observed:
"It is idle to try to define the meaning of the phrase 'clearly erroneous'; all that can be profitably said is that an appellate court, though it will hesitate less to reverse the finding of a judge than that of an administrative tribunal or jury, will ...