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United States District Court, Northern District of Illinois, E.D

March 24, 1982


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


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
      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 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 Amendment rights.

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 Workers.*fn4

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 campaigns.").

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 activity.

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 elections.

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 and unconstitutional.*fn7

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.
  at 2889-90);

    (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 Dist. 1980).*fn10

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 at 606:

  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 protected activity.

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 Ordinance.

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.

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