Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 C 9148, Nicholas J. Bua, Judge.
Before: Flaum, Circuit Judge, Pell, and Wisdom,*fn* Senior Circuit Judge. Pell, Senior Circuit Judge.
Defendant below, the City of Chicago, appeals from the district court judgment in favor of plaintiff, Donald C. Tomczak, holding that appellant had violated the Shakman decree, which controls the use of political patronage in appellant's employment practices. Appellant raises three issues on appeal. The first issue is whether the district court erred in holding that the position occupied by appellee was not exempt from the strictures of Shakman. Second, even if the position is subject to Shakman, appellant maintains that the district court was clearly erroneous in finding that appellee's discharge was politically motivated and not for just cause. Finally, appellant objects to the remedy ordered by the district court.
I. HISTORY OF THE SHAKMAN LITIGATION
In 1970, this court reversed the district court's dismissal of Shakman's complaint and held that the complaint stated a justiciable cause of action and contained factual averments sufficient to survive a motion to dismiss. Shakman v. Democratic Organization of Cook County, 435 F.2d 267 (7th Cir. 1970), cert. denied, 402 U.S. 909, 28 L. Ed. 2d 650, 91 S. Ct. 1383 (1971). The complaint alleged that it was unconstitutional for public officials or political bodies to discharge or threaten to discharge employees under their control who refused to contribute money and work time to candidates supported by those officials or political entities.
A consent decree, entered in May 1972, attempted to eliminate, for employees of local governmental entities, any coercion or employment discrimination based upon political considerations. The decree enjoined the Shakman defendants from "conditioning, basing or knowingly prejudicing or affecting any respect to one who is at the time a governmental employee, upon or because of any political reason or factor." Reproduced in Shakman v. Democratic Organization of Cook County, 481 F. Supp. 1315, 1358 (N.D. Ill. 1979). The district court retained jurisdiction of the case to enable the parties to enforce compliance with the decree and to resolve a manner of still-disputed issues, including whether
certain governmental employment positions . . . by their nature involve policy-making to such a degree or are so confidential in nature as to require that discharge from such positions should be exempt from inquiry under this Judgment. Jurisdiction is maintained to litigate the question of which governmental employment positions under such defendants' jurisdiction are so exempt for the foregoing reasons.
Shortly thereafter, various defendants, who had refused to enter into the decree, filed motions to dismiss. The district court granted the motions concerning those portions of the complaint that challenged the hiring and firing of patronage employees based solely upon the political affiliation of the employee. Shakman v. Democratic Organization of Cook County, 356 F. Supp. 1241, 1244-49 (N.D. Ill. 1972). The district court reasoned that a newly elected or appointed official could replace employees of his predecessor based solely upon political affiliation, as long as he did not use hiring and firing practices to coerce political work or contributions. The United States Supreme Court subsequently has held that employees in nonpolicymaking and nonconfidential positions who are victims of patronage dismissals state a cause of action under the First and Fourteenth Amendments. Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) (plurality opinion); id. at 374-75 (Stewart, J., concurring).
In 1979, the district court again addressed the patronage practices, particularly in hiring decisions, of those defendants who had not entered the 1972 consent decree. Shakman v. Democratic Organization of Cook County, 481 F. Supp. 1315 (N.D. Ill. 1979). The court held that "the challenged patronage practices give the defendants an actual, significant advantage in elections" and, therefore, infringe the First and Fourteenth Amendment rights of the plaintiff candidates and voters. Id. at 1345. The court further held "that the non-consenting defendants have independently infringed the plaintiffs' constitutional rights through their use of patronage hiring, firing, and promotion practices, as well as through their conspiracy with the consenting defendants to practice and further patronage hiring practices." Id. at 1349 (footnote omitted). In a footnote, however, the court added the following caveat:
It is the court's understanding that the plaintiffs are not challenging the defendants' use of political considerations in their employment decisions concerning policymaking officials, see Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976); Newcomb v. Brennan, 558 F.2d 825 (7th Cir.), cert. denied, 434 U.S. 968, 98 S. Ct. 513, 54 L. Ed. 2d 455 (1977). The court's decision today does not affect government employees who are in that category.
In a later decision, the district court adjudged "the hiring aspects of the Shakman case." Shakman v. Democratic Organization of Cook County, 569 F. Supp. 177, 178 (N.D. Ill. 1983). The court noted that the 1983 judgment attempted "to eliminate political considerations in the hiring of government employees." Id. The judgment included the following paragraph, labeled "Exempt Positions":
Defendant Public Employers may, from time to time, apply to the Court for a determination that political party affiliation or activity are appropriate requirements for the effective performance of certain Governmental Employment positions and therefore hiring for or discharge from such positions should be exempt from inquiry under this Judgment and the Consent Judgment.
Id. at 182. In an appendix added to the opinion two months after the judgment, the district court, by motion of the City of Chicago and with the consent of the Shakman plaintiffs, supplanted the earlier judgment with respect to the city and its mayor. The substantive provisions of the amended judgment were substantially similar to the earlier judgment, except for portions related to the exempt positions. The new judgment exempted approximately 1,200 city employees from the application of the Shakman decree. Included in the exempt list, known as Schedule G, were approximately thirty-three positions in the Department of Water, including the Assistant Commissioners of the Department, the First Deputy Commissioner of Water, and the Deputy Commissioner of Water Services. The district court also retained jurisdiction of the case
to consider petitions requesting, for good cause, that particular positions listed in Part G should be deleted from the Schedule and to give such other relief as may be appropriate . . . .
No action taken with respect to any position while it remains on the Schedule shall be considered contempt of this Court ...