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

September 24, 1985


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


Plaintiffs Lafayette Blackmon, Gwen Flowers, Henry Hudson, Ruby Thomas, John Laschiava and Whitney Valentine*fn1 brought this civil rights' action pursuant to 42 U.S.C. § 1983 for injunctive relief and damages claiming that the defendants Alderman Burke ("Burke") and the City of Chicago (the "City") violated plaintiffs' First and Fourteenth Amendment rights by terminating their employment as investigators for the City Council's Finance Committee. The terminations allegedly resulted because plaintiffs were supporters of Mayor Washington and Alderman Frost, who are purportedly political "enemies" of Alderman Burke. All of the parties have filed motions for summary judgment.

Summary judgment is a drastic remedy which should be granted only when it is clear that the requirements of Rule 56, F.R.Civ.P., have been met. As the Supreme Court in Poller v. Columbia Broadcasting, 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1961) admonished:

  Summary judgment should be entered only when the
  pleadings, depositions, affidavits and admissions
  filed in the case show that . . . there is no genuine
  issue as to any material fact and that the moving
  party is entitled to judgment as a matter of
  law . . . [summary judgment is appropriate
  only] . . . where it is quite clear what the truth
  is, . . . [and where] no genuine issue remains for
  trial. . . .

All allegations and inferences are to be construed in the light most favorable to the party opposing the motion. However, "to create a question of fact, an adverse party responding to a properly made and supported summary judgment motion must set forth specific facts showing that there is a genuine issue for trial." Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983). A party may not rest on mere allegations or denials of his pleadings; similarly, a bare allegation that an issue of fact exists is insufficient. Shacket v. Philko Aviation, Inc., 681 F.2d 506, 513 n. 8 (7th Cir. 1982).

For the reasons set forth below, the City's motion for summary judgment is granted. Alderman Burke's motion is granted in part and denied in part, and the plaintiffs' motion for summary judgment is denied.


  Prior to May 1983, Alderman Frost was the Chairman of the City
Council Finance Committee. (Complaint, ¶ 10; Burke Dep., p. 27.)
Pursuant to Rule 37 of the Rules of the City Council, the Finance
Committee has jurisdiction:

   . . over the City budget, tax levies, industrial
  revenue bonds and revenue bond

  programs, revenue and expenditure orders, ordinances
  and resolutions, the financing of municipal services
  and capital developments; and matters generally
  affecting the Budget office, the Department of
  Finance, and the solicitation of funds for charitable
  or other purposes on the strees and other public
  places. . . . [and] all matters pertaining to the
  audit and review of expenditures of funds
  appropriated by the Council or under the custody of
  the City Treasurer, and all claims under the Illinois
  Worker's Compensation Act.

The plaintiffs were hired as investigators on the Finance Committee staff by Frost, except for plaintiff Hudson who was hired based on Frost's letter of sponsorship to the prior chairman. (Blackman Dep., pp. 32, 37-38; LaSchiava Dep., p. 69; Hudson Dep., pp. 24-25, 29; Thomas Dep., pp. 55-56.) During Frost's tenure as Chairman, investigators acted principally as claims adjusters, conducting field investigations of three kinds: (a) small property damage claims brought against the City; (b) claims brought by police and firemen for work-related personal injuries and (c) workers' compensation claims filed by city employees. (Bell Dep., pp. 18-20.) Plaintiffs conducted interviews, took witness statements and processed documents. (Flowers Dep., pp. 29-39.) Plaintiffs, most of whom were precinct captains, also performed political work for Alderman Frost and his 34th Ward Organization. (Blackman Dep. pp. 5-6; LaSchiava Dep., pp. 14-15; Hudson Dep., pp. 38-42; Flowers Dep. pp. 24-25; Valentine Dep., p. 30; Thomas Dep., pp. 41-42.)

On May 2, 1983, during a now legendary session of the City Council, Mayor Washington unsuccessfully attempted to adjourn the Council meeting to prevent the majority block of alderman (referred to in the media as the "Vrdolyak 29") from realigning committee chairmanships and altering Council rules. Alderman Frost and a minority faction of the Council walked out of the Council chambers after the Mayor's "adjournment"; however, a majority of the council members remained and continued to conduct Council business. During this post-"adjournment" session, Alderman Burke was elected Chairman of the Council Finance. (Complaint, ¶ 9-10; Burke Dep., pp. 15, 38, 131, 162, 168.)

The Illinois Appellate Court upheld the legality of the City Council meeting at which Alderman Burke was elected Finance Committee Chairman. Roti v. Washington and Rush v. Kozubowski, 114 Ill. App.3d 958, 71 Ill.Dec. 30, 450 N.E.2d 465. However, Alderman Frost refused to vacate the Finance Committee office or to allow Alderman Burke access for approximately two months. (Burke Affidavit, ¶ 7.) Alderman Frost finally relinquished the Chairman's office after the Illinois Supreme Court refused to review the Appellate Court's decision. (Burke Dep., pp. 109-110.)

After Alderman Burke was elected Chairman of the Finance Committee, he determined that the Committee should take a more aggressive and active role than before to monitor City government activities and financial affairs. (Burke Dep., pp. 26, 61, 62, 67, 72, 75.) Burke therefore allegedly decided to change the duties of the Finance Committee investigators. In addition to investigations of workmen's compensation claims and injured-on-duty claims of police and firefighters, the investigators were to gather factual information concerning needs for and delivery of City services. Burke claims that under his leadership, the upgraded responsibilities of the investigators' work have included:

  Discovery that City departments had cars in excess of
  those provided in the City budget, which led to
  passage of an ordinance limiting the number of City
  vehicles. (Burke Dep. at 73-74, 91; Kubasiak
  affidavit at 4a.)

  Discovery that an ex-City employee was being
  chaufferred around the City by a City employee using
  a City car. This information helped lead to a
  requirement in the 1984 ordinance that each City
  agency report its utilization of each vehicle to the
  Finance Committee. In addition, there is a current
  investigation of the excessive use of City employee

  chauffers and City vehicles by City administrators
  after normal working hours. (Kubasiak affidavit at
  4b; Burke Dep. at 74, 83-85, 88, 91.)

  Investigation and evaluation of actual and potential
  recipients of community block grant funds including
  site visits, interviews, examinations of records,
  after which a community development grant budget was
  created with line items which track annual
  appropriations ordinance and demonstrate the specific
  use of funds. (Burke Dep. at 77-78, 114-15, 117;
  Kubasiak Dep. at 70.)

  On-site inspections of work by persons under
  contract, to perform City functions (Burke Dep. at
  111, 123), as well as proposed contracts (Kubasiak
  Dep. at 101-102) and gathering of factual information
  to determine whether those persons are capable of
  performing properly (Kubasiak affidavit at 4c.)

  Investigations of complaints regarding the efficiency
  of City departments' operations, including use of
  motor fuels tax revenue, since the City Department of
  Public Works must receive specific allocations from
  the City Council, as well as because the Finance
  Committee is mandated by ordinance to determine
  whether all appropriations are being used efficiently
  and in accord with the appropriations. (Burke Dep. at
  111, 119-20.)

  Examination of the delivery of services by various
  City departments to provide information concerning
  whether they are efficient and for use in
  establishing priorities and needs in the budget and
  appropriations process. (Kubasiak affidavit at 4d.)

  A survey and analysis of abandonded buildings, which
  was used in determining needs and priorities for
  various City services and appropriations. (Kubasiak
  affidavit at 4e.)

  Factual research regarding other legislative issues,
  including the use of motor fuels tax revenue since
  the Finance Committee is mandated by ordinance to
  determine whether such funds are being used
  efficiently and in accord with City Council
  appropriations. (Kubasiak affidavit at 4f.)

These duties, it is contended, include investigations of matters which are politically sensitive, because the results could reflect well or poorly on various elected officials and politicians. (Kubasiak Dep., pp. 98-99.)

Upon assuming the Chairmanship of the Finance Committee, Alderman Burke met with Edward Bell, who was then serving as the committee's Chief Administrative Officer. Among the topics discussed were the nature of the job responsibilities performed by the employees of the Finance Committee, and the identities of the employees of political sponsors. (Bell Dep., pp. 44-46, 49-54, 78-79.) Burke learned that plaintiffs were politically affiliated with Alderman Frost. (Burke Dep., 249-250.)

During July, 1983, plaintiffs were fired from their positions as investigators for the Finance Committee by Alderman Burke. Plaintiffs allege that the "sole motive, purpose and reason" for their firings was their political beliefs and associations — namely, their association with Frost and Washington. (Complaint, ¶ 11.)

Mr. Burke explained his reasons for terminating the plaintiffs' employment as follows:

    Q. You felt that you were better off if those
  appointees were out of the office for confidentiality
  and security reasons, is that correct?

    A. Well, I think that it is reasonable to assume if
  they were tied to Alderman Frost, and their loyalty
  was to Alderman Frost, that we could expect that we
  would not receive from them the confidentiality and
  dedication that would be required of employees to the
  new chairman.

    Q. In fact, you did anticipate that problem, is
  that correct?

A. That was one of the reasons they were dismissed.

Q. What other reasons?

    A. It would appear from our examination of what was
  going on that many of them were incompetent. The
  police and fire claims were in a total mess. There
  were claims dating back for years

  that hadn't been acted on. Some were buried in
  drawers someplace.

    The unions were complaining about the treatment
  that the police and fire members were getting from
  the committee. Bills would go unpaid. Firemen and
  policemen were being sued for nonpayment of bills.
  There was a lack of recovery from third party payers
  in cases that were pending in court, and that's been
  rectified. The record speaks for itself. There is an
  increase in tens of thousands of dollars in
  recoveries from third party payers on liens that
  should have been collected years ago.

Q. What other reasons?

    A. I felt that, first of all, they were exempt from
  the Shakman ruling. There was no obligation on our
  part to continue their employment. They constituted a
  group of people that were loyal to the prior chairman
  who would impede our desire to put the committee on a
  new footing.

    They just didn't seem to be capable of devoting
  themselves and their time to that function. Moreover,
  some of them had other jobs. And I felt it was
  important to start with a new team.

Q. Of people personally loyal to you?

    A. Loyal to the chairman, who would not breach the
  confidentiality and security that was necessary in my
  opinion to the functioning of the committee.

    Q. How did you think that the plaintiffs in this
  case were going to impede your desire to put the
  committee on a new footing?

    A. They apparently were political functionaries of
  Alderman Frost who were put on the payroll by
  Alderman Frost, who did political work for Alderman
  Frost, who belonged to his political organization,
  and as near as we could tell did little or nothing in
  terms of their City jobs other than work the
  precincts for Alderman Frost.

(Burke Dep. pp. 159-161.)

The Pending Motions

All of the parties have filed motions for summary judgment. The City's motion is predicated upon the Supreme Court's decision in Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which precludes the imposition of liability upon a municipality under 42 U.S.C. § 1983 based solely upon principles of respondeat superior. For the purposes of his motion, Alderman Burke assumes arguendo that plaintiffs' political affiliation was in fact the sole cause for their termination, but argues that, as a matter of law, political affiliation is a constitutionally permissible criterion for the jobs in question. Alderman Burke has also moved for summary judgment arguing that plaintiffs' action is barred by the doctrines of legislative immunity, and/or a qualified "good faith" immunity to Section 1983 liability. Plaintiffs' motion for summary judgment argues that plaintiffs were victims of political firings, political affiliation was not an appropriate requirement of plaintiffs' jobs, and that Burke has no legislative or "good faith" immunity from liability.

These motions are discussed below.



The Supreme Court recently reiterated the elements of a claim under 42 U.S.C. § 1983. Plaintiff must plead that (1) a person (2) acting under color of state law (3) subjected the plaintiff or caused the plaintiff to be subjected (4) to the deprivation of a right secured by the Constitution or laws of the United States. City of Oklahoma v. Tuttle, ___ U.S. ___, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (Brennan, J. concurring at p. ___, 105 S.Ct. 2439). Section 1983 creates no substantive rights: "it merely provides remedies for deprivations of rights established elsewhere." Id., (plurality opinion at ___, 105 S.Ct. at 2441).

A municipality can be found liable under Section 1983 only if a plaintiff has been injured by reason of a governmental policy or custom. A simple employment relationship between the primary offender and a municipality is not a sufficient basis for a city's liability. Monell, supra, 436 U.S. at 694, 98 S.Ct. at 2037. Moreover, the liability of a city cannot be premised upon proof of a single incident of unconstitutional activity. To do so would essentially impose liability upon a city "simply because the municipality hired one `bad apple.'" Tuttle, supra.

In the instant case, plaintiffs do not allege that their firings resulted from any City policy or custom. It is undisputed that the decision to terminate the plaintiffs' employment was Alderman Burke's alone. (Burke, Dep., pp. 129, 139, 142, 158-60, 178, 180.) Burke received no input from other members of the City Council with respect to his decision. (Burke Dep., pp. 266-67.) He did not consult with the mayor's office or the Department of Personnel prior to firing the plaintiffs. (Hill Aff. ¶ 5.) The positions held by plaintiffs were exempt from the career service rules contained in the Municipal Code and the personnel rules and regulations established by the City Department of Personnel. (Hill Aff., ¶¶ 3, 4.) In short, the City's only involvement with plaintiffs' firing is that the decision to terminate them was made by an Alderman. Under the reasoning of Monell and Tuttle, that relationship alone is not enough.

The case of Reed v. Village of Shorewood, 704 F.2d 943 (7th Cir. 1983) does not alter this result. In Reed, a factual question was presented as to whether the actions of the mayor and other village officials constituted "a policy orchestrated at the highest level of government in the Village of Shorewood. If so . . . the Village would be liable." (Id., at 953; emphasis supplied.) Here, there is no evidence whatsoever that the actions of Alderman Burke amounted to "a policy orchestrated at the highest levels of [City] government." The mere fact that an action is taken by an individual Alderman does not ipso facto make the decision one of City "policy". Accordingly, the City's motion for summary judgment must be granted.



Although public employees such as the plaintiffs here have no entitlement to public employment, such employment is a government benefit that cannot be conditioned in a way that penalizes the exercise of the rights of free belief and association. Branti v. Finkel, 445 U.S. 507, 514-17, 100 S.Ct. 1287, 1292-94, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 358-60, 96 S.Ct. 2673, 2682-83, 49 L.Ed.2d 547 (1976). "[A] public agency that fires an employee because of his political beliefs or political affiliations infringes his freedom of speech . . ." — unless, of course, it can be said that the employee is either a "policymaker" or a "confidential employee". Soderbeck v. Burnett County, 752 F.2d 285, 288 (7th Cir. 1985). "Policymaker" or "confidential employees" can be fired for political reasons with impunity.

The distinction drawn between policymakers and nonpolicymakers is admittedly fuzzy. The plurality opinion in Elrod, supra, stated: "An employee with responsibilities that are not well defined or are of broad scope more likely functions in a policymaking position . . . Consideration should also be given to whether the employee acts as an advisor or formulates plans for the implementation of broad goals." Elrod, 427 U.S. at 368, 96 S.Ct. at 2687. The Seventh Circuit, while acknowledging that the "determination of status as a policymaker in many cases presents a difficult factual question," has prescribed the following test:

  ". . . whether the position held by the individual
  authorizes, either directly or indirectly, meaningful
  input into government decision making on issues where
  there is room for principled disagreements on goals
  or their implementation."

Nekolny v. Painter, 653 F.2d 1164, 1169, 1170 (7th Cir. 1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982).

The definition of a "confidential employee" is no more concrete. The Seventh Circuit has acknowledged that "`considerations of personal loyalty . . . may justify the employment of political associates in certain positions,' but these factors would not apply to `positions such as janitors, elevator operators or school teachers.'" Tomczak v. The City of Chicago, 765 F.2d 633, 640 (7th Cir. 1985), quoting Illinois State Employees Union Local 34 v. Lewis, 473 F.2d 561, 564 (7th Cir. 1972), cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973). All that can be said with certainty with regard to "confidential employees" is that "[i]f Rosalynn Carter had been President Carter's secretary, President Reagan would not have had to keep her on as his Secretary." Soderbeck, supra, 752 F.2d at 288.

As an alternative to labeling positions as policymaking or confidential, the Branti court posed the question as follows: "whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the office involved." 455 U.S. at 519, 100 S.Ct. at 1295. Yet, the Seventh Circuit has still persisted in utilizing the jargon of "policymaking" and "confidential" in determining whether political affiliation can be considered for certain positions. Nekolny, supra; Soderbeck, supra; Tomczak, supra.

A non-policymaking/non-confidential employee claiming to be the victim of a political firing has the burden of showing that his protected conduct was a "substantial factor" or "motivating factor" in the decision to terminate his employment. Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Nekolny v. Painter, 653 F.2d 1164, 1167 (1981). As the Seventh Circuit has stated, "[t]hat burden is not significant. A disgruntled employee fired for legitimate reasons would not be able to satisfy his burden merely by showing that he carried the political card of the opposition party or that he favored the defendants' opponent in the election." Nekolny, supra, at 1168. Indeed, "[t]his standard is not satisfied if the plaintiff shows only that elimination of the protected activity may have been welcomed by the defendant or even that such activity played some minor role in the discharge decision." McClure v. Cywinski, 686 F.2d 541, 546 (7th Cir. 1982). Once the plaintiff has met that burden, the defendant has the burden of showing that he would have reached the same decision as to the firing even in the absence of the protected conduct. Mt. Healthy City, supra.

The Court need not address all of the points raised by plaintiffs in support of their motion for summary judgment, for it is clear that at the very least, material issues of fact exist concerning (1) the nature of the investigator positions; and (2) whether plaintiffs' political beliefs or affiliations were a "substantial" or motivating factor in the decision to terminate their employment.

While plaintiffs characterize the Finance Committee investigators as nothing more than glorified claims adjusters, Alderman Burke maintains that they have significant input into the development of legislative proposals and work on confidential and sensitive investigations. Alderman Burke has denied in his Answer that plaintiffs' terminations resulted solely from political affiliations, and has contended in his deposition testimony that plaintiffs would have been fired regardless of their affiliation with Alderman Frost because of their performance and attendance records.

The Court cannot accept plaintiffs' argument that Burke waived his right to assert that plaintiffs would have been fired regardless of political affiliation by failing to plead it as an affirmative defense. The denial in Burke's Answer and his deposition testimony clearly put this matter at issue. Plaintiffs can hardly claim surprise concerning this defense. However, in the interest of fairness, Burke will be given 14 days to amend his answer to raise this defense as an affirmative defense because "justice so requires." Rule 15(a), F.R.Civ.P. Plaintiffs will be given leave to conduct whatever further discovery they feel is required with regard to that defense, and that defense alone.

Accordingly, plaintiffs' motion for summary judgment is denied.



  A. Material Factual Issues Preclude Summary Judgment in Favor
     of Alderman Burke on the Appropriateness of Considering
     Political Affiliation in Firing Plaintiffs.

For the reasons previously discussed in section II, supra, the Court finds that an issue exists as to the facts regarding the nature of the investigator position for the Finance Committee under the chairmanship of Alderman Burke. These facts are material and preclude summary judgment on the appropriateness of considering political affiliation in firing plaintiffs.

  B. Material Factual Issues Concerning the Applicability of the
     Doctrine of Legislative Immunity Preclude Summary Judgment
     on this Defense.

If the doctrine of legislative immunity is applicable, it absolutely bars plaintiffs' action. Mother Goose Nursery Schools, Inc. v. Sendak,
770 F.2d 668, 671 (7th Cir., 1985).

  The privilege of legislators to be free from civil liability
for what they do or say in legislative proceedings was a long
recognized principal of English law. The Founding Fathers deemed
the privilege "so essential that it was written into the Articles
of Confederation and later into the Constitution." Tenney v.
Brandhove, 341 U.S. 367, 372, 71 S.Ct. 783, 786, 95 L.Ed. 1019
(1951). Article I, § 6 of the Constitution provides:

   . . for any Speech or Debate in either House, [the
  Senators and Representatives] shall not be questioned
  in any other place.

  Of course, the Constitution's Speech or Debate Clause confers
no immunity upon state or local legislators. The Supreme Court
has, however, extended a federal common law immunity from suit
under 42 U.S.C. § 1983 to state legislators acting "in the sphere
of legitimate legislative activity." Supreme Court of Virginia v.
Consumers Union, 446 U.S. 719, 731-32, 100 S.Ct. 1967, 1974, 64
L.Ed.2d 641 (1980). Municipal legislators also enjoy such
immunity. Reed v. Village of Shorewood, 704 F.2d 943, 952 (7th
Cir. 1983). The purpose of the immunity

   . . is based on the need for an independent
  legislative branch, free from the coercion of
  restraint imposed by inquiry from other governmental
  authority, as well as from the time consuming problem
  of legislators having to defend their official acts
  in court.

Agromayor v. Colberg, 738 F.2d 55, 58 (1st Cir. 1984), cert. denied, ___ U.S. ___, 105 S.Ct. 515, 83 L.Ed.2d 405 (1985).

The immunity does not encompass everything that a legislator might do while in office, however. Administrative functions are not protected. Only a legislator's conduct while "acting in the sphere of legitimate legislative activity" is immunized. Tenney v. Brandhove, 341 U.S. at 376, 71 S.Ct. at 788. Although the Constitution speaks only of "speech or debate", the Supreme Court has broadly construed the Constitutional protection to cover a wide range of legislative activity including "[c]ommittee reports, resolutions, and the act of voting . . .' [i]n short, . . . things generally done in a session of the House by one of its members in relation to the business before it.'" Gravel v. United States, 408 U.S. 606, 617, 92 S.Ct. 2614, 2623, 33 L.Ed.2d 583 (1972), quoting Kilbourn v. Thompson, 103 U.S. (13 Otto) 168, 204, 26 L.Ed. 377 (1881). "Investigations, whether by standing or special committees" have been recognized to be within the sphere of legitimate legislative activity, absent a showing that there was a usurpation of functions exclusively vested in the Executive or Judiciary. Tenney, supra, 341 U.S. at 377, 71 S.Ct. at 788. The immunity has also been extended to legislative aids or assistants because:

  it is literally impossible in view of the
  complexities of the modern legislative process, with
  Congress almost constantly in session and matters of
  legislative concern constantly proliferating, for
  Members of Congress to perform their legislative
  tasks without the help of aids and assistants; that
  the day-to-day work of such aids is so critical to
  the Members' performance that they must be treated as
  the latter's alter-egos . . .

Gravel, supra, 408 U.S. at 617-18, 92 S.Ct. at 2623.

In the instant case, Alderman Burke asserts that his decision to terminate plaintiffs' employment as Finance Committee investigators was within "the sphere of legitimate legislative activity" and thus immunized. Plaintiffs contend that the firing of Finance Committee investigators is an administrative, not legislative, act and thus argue that no protection is afforded to Alderman Burke by legislative immunity.

This Court has no clear guidance from the Supreme Court or from the Seventh Circuit concerning this issue. Most courts when called upon to differentiate between "legislative" and "administrative" acts have candidly recognized that "[n]o bright line delineates . . . administrative actions from . . . legislative functions . . . Hence, whether defendants' [firing of] plaintiff[s] was an administrative or legislative function does not admit to facile resolution." Detz v. Hoover, 539 F. Supp. 532, 534 (E.D.Pa. 1982).

Employment decisions concerning employees having no connection whatsoever with the legislative process have generally been held to be administrative acts not subject to legislative immunity, even if such decisions were voted on by legislators. See e.g., Detz v. Hoover, supra, (police chief); Visser v. Magnarelli, 542 F. Supp. 1331 (N.D.N.Y. 1982) (city clerk); Walker v. Jones, 733 F.2d 923 (D.C.Cir. 1984) (restaurant manager). Such decisions do not answer the question presented here, however, because Alderman Burke contends that the investigators do have some connection with the legislative process. The Courts of Appeals of two circuits confronted with similar cases have arrived at opposite conclusions.

In Davis v. Passman, 544 F.2d 865 (5th Cir. 1977), reversed en banc on other grounds on rehearing, 571 F.2d 793 (5th Cir. 1978), reversed on other grounds, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), Congressman Passman fired his Deputy Administrative Assistant because she was a woman. The Fifth Circuit held that the Congressman was not immune to the assistant's Fifth Amendment claim. The court held, with Judge Jones dissenting, that the firing of Congressional employees was not within the legitimate scope of legislative activity:

  Such dismissal decisions certainly are not "an
  integral part of the deliberative and communicative
  process by which Members participate in committee and
  House proceedings with respect to the consideration
  and passage or rejection of proposed legislation or
  with respect to other matters which the Constitution
  places within the jurisdiction of either House."
  Gravel v. United States, supra, 408 U.S. at 625, 92
  S.Ct. at 2627. Peripheral or tangential activities of
  a representative must not be confused with the
  legislative core. A representative's transgressions
  are not given absolute absolution. The Constitution
  establishes an immunity for aberrations in a
  representative's legislative activities, but members
  of Congress become mere mortals when they operate in
  more mundane fields. When members of Congress dismiss
  employees they are neither legislating nor
  formulating legislation. The fear of judicial inquiry
  into dismissal decisions cannot possibly affect a
  legislator's decisions on matters pending before
  Congress. 544 F.2d at 880.*fn3

  The First Circuit in Agromayor v. Colberg, 738 F.2d 55 (1st Cir. 1984), cert. denied, ___ U.S. ___, 105 S.Ct. 515, 83 L.Ed.2d 405 (1985), reached the opposite conclusion. In Agromayor, a journalist brought a civil rights action against the Speaker of the House of Representatives of the Commonwealth of Puerto Rico for alleged violations of his Constitutional rights in being denied employment as a legislative press officer because of political affiliation and national origin. The legislator moved to dismiss, in part, because the plaintiff's suit was barred by legislative immunity. The motion was denied and the legislator appealed.

On appeal, the First Circuit reversed. Senior Judge Bailey Aldrich, speaking for the court, acknowledged that "the scope of `legitimate legislative activity' subject to immunity . . . is ill-defined," but stated:

  To the extent that an employee's function is
  "essential" to the legislative process, his
  qualifications, and hence his proper selection,
  should be correspondingly essential. The question we
  must answer is, to what extent should a legislator be
  immune from judicial inquiry in determining those
  essential questions?

738 F.2d at 59. Reviewing the decision in Davis, supra, Judge Aldrich observed that in the opinion of three dissenting justices of the Supreme Court, Congressman Passman should have been immune because:

  A Member of Congress has a right to expect that every
  person on his or her staff will give total loyalty to
  the political positions of the Member, total
  confidentiality, and total support. This may, on
  occasion, lead a Member to employ a particular person
  on a racial, ethnic, religious, or gender basis
  thought to be acceptable to the constituency
  represented, even though in other branches of
  Government — or in the private sector — such
  selection factors might be prohibited. . . .

  At this level of Government — staff assistants of
  Members — long-accepted concepts of separation of
  powers dictate, for me, that until Congress
  legislates otherwise as to employment standards for
  its own staff, judicial power in this area is
  circumscribed. Davis v. Passman, ante, 442 U.S. at
  249-50, 99 S.Ct. at 2279 (Burger, C.J., dissenting).

Judge Aldrich explained further that the dissenting justices' views "expressed a proper common law concern beyond strict speech and debate or comparable immunity that courts should exhibit towards legislators, state or federal." Id., at 60.

The Agromayor court recognized, however, that "not all employment raises a legislative interest." Id. The Court concurred with the result in Walker v. Jones, supra, which held that the position of House restaurant manager has no meaningful input with regard to the legislative functioning. "However, any employee dealing with `the deliberative and communicative process' . . . must be of direct legislative importance." Id. The First Circuit concluded that if there is "enough opportunity for `meaningful input' into the legislative process" the employment decision should be immunized. Id.

This Court believes that the Agromayor approach is correct and more consistent with the policy considerations which underlie the legislative immunity. The Davis Court's analysis totally ignores the realities of the modern legislative process previously recognized by the Supreme Court that "it is literally impossible . . . for [legislators] to perform their legislative tasks without the help of aids and assistants . . ." Gravel, supra, 408 U.S. at 617, 92 S.Ct. at 2623. To the extent that such aids or assistants have some opportunity for meaningful input into the legislative process, this Court believes that the decision to hire or fire such aids or assistants is within the sphere of legitimate legislative activity.

The question thus becomes do investigators for the Finance Committee have the opportunity for meaningful input into the legislative process? The facts presented by the parties leave that question in dispute. Alderman Burke has submitted evidence suggesting that the Committee investigators have participated in investigations which have formed the basis of proposed or enacted legislation. See supra, pp. 1503-1505. Plaintiffs have countered that the investigators still process workmen's compensation claims.

  Of course, the fact that investigators perform some
administrative and some legislative tasks is not determinative.
As the Agromayor court explained:

   . . in applying the immunity we decline to inquire
  deeply into the functions performed by a particular
  personal legislative aide, inasmuch as such an
  inquiry itself threatens to undermine the principles
  that absolute immunity was intended to protect.
  Personal aides may perform a variety of tasks, only
  some of which are vital to the legislative process.

Agromayor, supra at 60. Nor does the fact that the investigators are employees of the Finance Committee, rather than personal aides to Alderman Burke, mean that Alderman Burke's decision to fire plaintiffs and hire other investigators is not within the sphere of legitimate legislative activity. It is undisputed that the function of hiring and firing of Finance Committee staff has been delegated by the Committee to the Chairman. How the Finance Committee chooses to manage its hiring/firing decisions "is a legislative matter, not our concern." Id., at 60 n. 4.

However, after reviewing the deposition transcripts submitted, the Court is unable to determine with any certainty whether the investigators meet the Agromayor test or not.

Alderman Burke's motion for summary judgment based upon legislative immunity must therefore be denied because material factual issues remain to be resolved.

  C. Alderman Burke's Qualified Immunity Does Bar Plaintiffs'
     Claims For Damages.

Although this Court is unable to resolve summarily the issue of legislative immunity on the record presented, the question of qualified immunity is different. The standard for qualified immunity was set down in Harlow v. Fitzgerald,
457 U.S. 800, 818, 819, 102 S.Ct. 2727, 2738, 2739, 73 L.Ed.2d 396 (1982):

  [G]overnment officials performing discretionary
  functions generally are shielded from liability for
  civil damages insofar as their conduct does not
  violate clearly established statutory or
  constitutional rights of which a reasonable person
  would have know.

The standard is an objective one, and does not depend upon the subjective state of mind of the official. Gannon v. Daley, 561 F. Supp. 1377, 1388 (N.D.Ill. 1983). The qualified immunity, however, only bars an action for monetary relief; it is inapplicable to requests for injunctive relief. Wood v. Strickland, 420 U.S. 308, 314 n. 6, 95 S.Ct. 992, 997 n. 6, 43 L.Ed.2d 214 (1975).

Alderman Burke claims that he should be afforded qualified immunity because he relied in good faith upon a June 1983 Shakman Consent Decree which listed plaintiffs' position as exempt from the prohibition of political firings. Plaintiffs counter that such an argument is precluded by Judge Marshall's decision in Gannon v. Daley, 561 F. Supp. 1377 (N.D.Ill. 1983) which rejected a similar argument. Plaintiffs further argue that since they are clearly neither policymakers nor confidential employees, Alderman Burke had to know that he was violating their constitutional rights by firing them for political reasons.

The Supreme Court's recent case of Mitchell v. Forsyth, ___ U.S. ___, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) highlights the appropriate line of inquiry. Mitchell involved a suit for damages against a former Attorney General of the United States who had authorized a warrantless wiretap on the respondent. The District Court held that the Attorney General was not absolutely or qualifiedly immune from suit. The Court of Appeals affirmed the lower court's ruling with regard to absolute immunity, but held that the ruling on qualified immunity was not ripe for appeal. The Supreme Court granted certiorari and affirmed the ruling on absolute immunity, but found that the ruling on qualified immunity was appealable and erroneous. The Court explained:

  The legality of the warrantless domestic security
  wiretap Mitchell authorized in November 1970, was, at
  that time, an open question, and Harlow teaches that
  officials performing discretionary functions are not
  subject to suit when such questions are resolved
  against them only after they have acted. The District
  Court's conclusion that Mitchell is not immune
  because he gambled and lost on the resolution of this
  open question departs from the principles of Harlow.
  Such hindsight-based reasoning on immunity issues is
  precisely what Harlow rejected. The decisive fact is
  not that Mitchell's position turned out to be
  incorrect, but that the question was open at the time
  he acted. Hence, in the absence of contrary
  directions from Congress, Mitchell is immune from
  suit for his authorization of the Davidson wiretap
  notwithstanding that his actions violated the Fourth

In words that are apropo for the instant case, the Court observed:

  We do not intend to suggest that an official is
  always immune from liability or suit for a
  warrantless search merely because the warrant
  requirement has never explicitly been held to apply
  to a search conducted in identical circumstances. But
  in cases where there is a legitimate question whether
  an exception to the warrant requirement exists, it
  cannot be said that a warrantless search violates
  clearly established law.

___ U.S. at ___; ___ n. 12, 105 S.Ct. at 2819-20; 2820 n. 12.

When Alderman Burke made his decision to fire plaintiffs, Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) was the controlling statement on the permissibility of political firings. But Branti did not absolutely forbid dismissals for political reasons. Branti in fact permits political firings if the "hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the office involved." 445 U.S. at 519, 100 S.Ct. at 1295. This is in essence the reasoning that has lead courts to categorize such positions as "policymaking" or "confidential". E.g., Soderbeck v. Burnett County, 752 F.2d 285, 288 (7th Cir. 1985).

As the Seventh Circuit has acknowledged, the "determination of status as a policymaker in many cases presents a difficult factual question." Nekolny v. Painter, 653 F.2d 1164, 1169 (7th Cir. 1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982). But that is not always the case. "[P]ositions such as janitors, elevator operators or school teachers" are clearly ones for which political affiliation could never be considered an appropriate job criterion. Tomczak v. The City of Chicago, 765 F.2d 633, 640 (7th Cir. 1985), quoting Illinois State Employees Union Local 34 v. Lewis, 473 F.2d 561, 564 (7th Cir. 1972), cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973). Similarly, political affiliation would clearly not be appropriate for positions such as bus drivers or secretary-dispatchers (Nekolny v. Painter, supra) or clerks (Gannon, supra).

To determine whether Alderman Burke can successfully assert a qualified immunity from suit, the Court assumes plaintiffs were fired for political reasons. The Court must then determine if "there is a legitimate question" whether political affiliation was an appropriate requirement for plaintiffs' positions. It seems clear to this Court that there was a legitimate question on this issue. Classification of the positions in question presents "a difficult factual question" (Nekolny, supra) not susceptible to facile resolution. Under the reasoning of Mitchell, supra, subjecting Alderman Burke to monetary liability "because he gambled and lost on the resolution of this open question departs from the principles of Harlow." Mitchell, supra. The "decisive fact" is not whether Alderman Burke's legal position ultimately turns out to be correct or incorrect, "but that the question was open at the time he acted." Id. Thus, while the Court does not "suggest that an official is always immune" simply because the positions in question have never been litigated, (id.) the Court holds that qualified immunity is applicable here because "a legitimate question" existed (and continues to exist) as to whether political affiliation was an appropriate consideration in firing plaintiffs. Plaintiffs claim for damages will be dismissed, but their claims for injunctive relief based upon the record presently before the Court will be allowed to proceed.


For the reasons set forth, the motion of defendant City of Chicago for summary judgment is GRANTED, plaintiffs' motion for summary judgment is DENIED and defendant Burke's motion is GRANTED in part and DENIED in part. Defendant Burke is granted leave to file within 14 days an amended Answer setting forth additional affirmative defense matters. The parties are given 21 days thereafter to complete additional discovery, if any is desired, on the new matters, and only the new matters, raised in the amended Answer.

Case set for a report on status at 9:15 a.m., November 6, 1985.

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