United States District Court, Northern District of Illinois, E.D
March 24, 1982
MICHAEL P. ARDEN, ET AL., PLAINTIFFS,
VILLAGE OF OAK LAWN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Four police officers employed by the Village of Oak Lawn
("Oak Lawn"), joined as plaintiffs by the Oak Lawn chapter of
Combined Counties Police Association, Inc. ("CCPA"),*fn1
bring this class action*fn2 against Oak Lawn, its President
and Board of Trustees and its Chief of Police. Plaintiffs seek
declaratory and injunctive relief against an Oak Lawn
ordinance as an unconstitutional abridgement of the First
Amendment right of Oak Lawn employees to engage in political
activities. Defendants have moved to dismiss the Complaint
under Fed.R.Civ.P. ("Rule") 12(b)(6) for failure to state a
cause of action. Their motion is denied.
On June 9, 1981 Oak Lawn's Board of Trustees passed an
ordinance (the "Ordinance") sharply restricting the political
activities of municipal employees:
Sec. 2-59. Prohibited Activities
Village employees, including policemen and
firemen, are prohibited from engaging in the
following activities connected with elections for
Village offices or propositions:
1. from soliciting contributions for candidates,
parties or political purposes;
2. from taking part in the management or affairs
of any political party's or candidate's
3. from addressing or taking an active part in
political rallies or meetings; and
4. from riding in caravans for a political party
or political candidate.
Defendants' motion to dismiss poses the questions whether,
accepting the Complaint's allegations and all reasonable
inferences in plaintiffs' favor, the Ordinance cannot be
viewed as vague or overbroad in violation of plaintiffs' First
For most people in our democracy political activity lies
close to the heart of the First Amendment and is hence — via
the Fourteenth Amendment — protected from state
infringement.*fn3 Nonetheless it is well-settled that
government employees are something less than first-class
citizens in that respect, for the First Amendment does not
forbid restrictions on their partisan political conduct. United
Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed.
754 (1947). Less than a decade ago the Supreme Court, in United
States Civil Service Comm'n v. National Ass'n of Letter
Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973)
and Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37
L.Ed.2d 830 (1973), "unhesitatingly" (413 U.S. at 556, 93 S.Ct.
at 2886) reaffirmed the vitality of United Public
But plaintiffs urge persuasively that the Ordinance, which
is not limited to partisan elections, casts too wide a net.
Throughout Letter Carriers and Broadrick, as in United Public
Workers, the Court spoke of partisan political activity. Letter
Carriers, 413 U.S. at 556, 93 S.Ct. at 2886; Broadrick, 413
U.S. at 616-18, 93 S.Ct. at 2918-19; United Public Workers, 330
U.S. at 99-101, 67 S.Ct. at 569-70. Party politics provided the
rational underpinning for inhibiting First Amendment activity
in each decision. See also Magill v. Lynch, 560 F.2d 22, 29
(1st Cir. 1977) (". . . the government may constitutionally
restrict its employees' participation in nominally nonpartisan
elections if political parties play a large role in the
By necessary implication a municipality may not
constitutionally prevent its employees from participating in
nonpartisan political elections. Because the Ordinance plainly
includes such nonpartisan elections within its ban, it runs
afoul of the First Amendment.*fn5
On defendants' motion to dismiss, all well-pleaded
allegations of the Complaint must be taken as true. Plaintiffs
allege in part that:
(1) "[They] have in the past participated in
various political campaigns and rallies and taken
part in the affairs of various non-partisan
candidate's [sic] campaigns, as well as
soliciting contributions for said non-partisan
candidates." Complaint ¶ 4.
(2) On information and belief, "all candidates
running for local political office
in the Village have run as non-partisans."
Complaint ¶ 12.
(3) "[A]s a result of the passage of the
Ordinance, all solicitations, contributions and
participation in local community events and
affairs which might be considered political have
ceased; thus creating a chilling effect on the
rights of the Plaintiffs as complained of
herein." Complaint ¶ 16.
Those allegations alone (and there are more) suffice to
defeat defendants' motion. Plaintiffs' Complaint paints the
impermissible portrait of municipal employees barred, on pain
of dismissal, from engaging in wholly nonpartisan political
Defendants seek to rebut plaintiffs' case via the affidavit
of Oak Lawn's counsel, Patrick A. Lucansky.*fn6 Lucansky says
the April 1981 Oak Lawn municipal election was a "partisan
election, participated in by Oak Lawn First Party, the Mayors'
Coalition Party, and several independent candidates." Similar
statements are made as to the 1979 and 1977 municipal
Even taken at face value Lucansky's affidavit does not meet
the Complaint head-on. Lucansky himself refers to "several
independent candidates" in each of the three elections. It is
just such "non-partisan candidates" in whose campaigns
plaintiffs take part and for whom plaintiffs solicit
contributions (Complaint ¶ 4). That constitutionally protected
conduct is stifled by the Ordinance, which is thus overbroad
Moreover, even the main thrust of Lucansky's affidavit
— his conclusory (and not really testimonial) statement that
each "Oak Lawn municipal election . . . was a partisan
election" — is suspect. It is hardly clear that the
participation of village political "parties" in local
elections*fn8 makes such elections "partisan" for First
Amendment purposes. Letter Carriers identified several major
governmental interests served by a ban on public employees'
involvement in partisan elections:
(1) serving the public's interest in an
efficient government, faithful to the legislature
rather than party (413 U.S. at 564-65, 93 S.Ct.
(2) avoiding the development of a powerful
political machine (id. at 565-66, 93 S.Ct. at
(3) ensuring that public employees achieve
advancement on their merits and that they be free
of coercion and the prospect of favor from
political activity (id. at 566-67, 93 S.Ct. at
See also Magill, 560 F.2d at 27-29.
Those policy considerations were held to outweigh, in the
balancing process, the employees' First Amendment assertions.
But their very articulation shows them relevant where
"partisan" means national — or at
least regional or statewide — political parties. Only such
large-scale mass organizations would normally have the money,
influence and patronage to develop "powerful political
machines" and consequently pose real threats to the public
interest in responsive government and the employee's interest
in freedom from coercion.
This is not to say that small, village-based political
parties could never present the kinds of threats identified in
Letter Carriers. But that bare possibility can scarcely support
a motion to dismiss (as contrasted with elections involving the
Democratic and Republican parties, where a court can
effectively take judicial notice that "partisan" indeed means
partisan). Even were the Ordinance limited (as it is not) to
partisan elections, the question of "partisan" vel non is
wholly factual in the present context. Binding inferences
cannot be drawn from the labels groups of individuals seek to
give themselves, or those that others seek to pin on them.
All this however has in a sense been a digression. After
all, the major fatal flaw in the Ordinance is its wide-ranging
applicability to clearly nonpartisan activity entitled to the
broadest First Amendment protection, both in freedom of
association and freedom of speech terms. It prohibits engaging
in "activities" connected with "elections" — not "partisan"
elections but all elections in Oak Lawn. Its ban specifically
extends to referenda ("propositions") and other sorts of
elections where no permanent political organization — national
or village-based, large or small — is involved. It bars
contributions for all "political purposes" and taking an active
part in all "political rallies or meetings."
Nor will this Court rewrite the Ordinance under the guise of
"interpretation" by inserting "partisan" where Oak Lawn has
not.*fn9 In that respect defendants palter with the Court.
Their Br. 5 says the Ordinance's provisions "were lifted
virtually verbatim" from the language approved by the Illinois
Appellate Court in Redemske v. Village of Romeoville, 85 Ill. App.3d 286,
291, 40 Ill.Dec. 596, 600, 406 N.E.2d 602, 606 (3d
That statement is simply false, and false in a way that cuts
directly against defendants' position. All the
Redemske language (and the language from Broadrick, 413 U.S. at
616-17, 93 S.Ct. at 2918, on which Redemske relied for its
conclusion) emphasized that partisan activities were being
prohibited under the ordinance or statute involved. As Redemske
put it, 85 Ill. App.3d at 291, 40 Ill.Dec. at 600, 406 N.E.2d
These opinions make it clear that, when properly
done, a governmental unit may prevent its
employees (1) from soliciting contributions for
partisan candidates, parties, or political
purposes; (2) from taking part in the management
or affairs of any political party's partisan
political campaign; (3) from addressing or taking
an active part in political rallies or meetings;
and (4) from riding in caravans for a political
party or partisan political candidate.
Laying Redemske alongside the Ordinance demonstrates that Oak
Lawn calculatedly excised the word "partisan" wherever it
appeared. This Court will not engage in reconstructive surgery
to save Oak Lawn's deliberate chilling of First Amendment
One last point is worth making on the subject of chilling.
In direct contrast to Letter Carriers and Broadrick, Oak Lawn
has promulgated no regulations giving employees
notice of the kinds of particular political activity prevented
under the Ordinance.*fn11 Nor does the Ordinance provide any
mechanism for advance rulings as to whether particular conduct
is proscribed.*fn12 Instead the employee interested in
governmental affairs must risk discharge each time Oak Lawn
decides to press hard against the outer limits of the
That prospect is a classic example of the "chilling effect."
Because concern as to "chilling" is so central to First
Amendment values (see Grayned v. City of Rockford,
408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972), the
Ordinance would not necessarily be saved solely by reinsertion
of the word "partisan" where Oak Lawn has deleted it.*fn13
For the reasons stated in this memorandum opinion and order,
Oak Lawn's motion to dismiss is denied.