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Shakman v. Dunne

decided: August 5, 1987.


Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 69 C 2145 -- Nicholas J. Bua, Judge.

Flaum and Ripple, Circuit Judges, and Eschbach, Senior Circuit Judge.

Author: Ripple

RIPPLE, Circuit Judge.

At issue in this class action is the constitutionality of the patronage hiring system maintained by the appellants in Cook County, Illinois. The appellees are independent candidates, independent voters, and taxpayers who alleged that the appellants' policy of using political "sponsorship" as a factor in determining who received a Cook County government job, creates a substantial electoral advantage for the incumbent political office holder and, in doing so, violates the appellees' constitutional rights. The district court granted the appellees' motion for partial summary judgment on the issue of liability.*fn1 Shakman v. Democratic Org. of Cook County, 481 F. Supp. 1315, 1355 (N.D. Ill. 1979). For the reasons set forth in the following opinion, we reverse.



In 1969,*fn2 Michael Shakman was an independent candidate seeking election as a delegate to the 1970 Illinois Constitutional Convention. Prior to the election, Mr. Shakman and Paul Lurie, a voter supporter, filed this lawsuit on behalf of themselves and all other independent candidates, independent voters and taxpayers in Cook County, Illinois. The complaint alleges that various government agencies and officials in the City of Chicago and Cook County maintained and conspired to maintain a policy of hiring and retaining only those people who had received political sponsorship. The necessary sponsorship was usually obtained only on the basis of past political support or promises of future support for candidates endorsed by the Democratic Party. This support allegedly included both political contributions and political work on behalf of those candidates selected by the Democratic Party. Lack of sponsorship made employment unlikely and loss of sponsorship often resulted in dismissal. The plaintiffs alleged that this system of hiring and firing based on political sponsorship created an army of political workers and campaign funds that were not available to candidates who did not receive the endorsement of the Democratic Party. The plaintiffs argued that this system created a governmentally-maintained advantage for one political party. The complaint sought relief under 42 U.S.C. ยง 1983, 1985, 1986 and 1988 for violation of the plaintiffs' rights protected by the first, fifth and fourteenth amendments.

Before the election, in 1969, the district court dismissed the complaint. Shakman v. Democratic Org. of Cook County, 310 F. Supp. 1398 (N.D. Ill. 1969). The district court held that the plaintiffs lacked standing to assert the rights of Democratic patronage employees and that any allegations that the harm done to the patronage employees also harms the plaintiffs are "too conclusory to support a cause of action upon which relief may be granted." Id. at 1402.

A divided panel of this court reversed that decision and remanded the case for further proceedings. Shakman v. Democratic Org. 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) (Shakman I). The panel first noted that, although the election had already been held, the practices challenged in the complaint were of a continuing nature and, therefore, they case was not moot. Id. at 268. The majority concluded that "the averments concerning the operation of the patronage system and the disadvantage it causes to candidates and voters who attempt to use the election process to change the direction of government are factual and give adequate fair notice of claim asserted." Id. at 270. Relying on cases that involved the mechanics of the election process, the panel held:

The interest in an equal chance and an equal voice is allegedly impaired in the case before us by the misuse of official power over public employees so as to create a substantial, perhaps massive, political effort in favor of the ins and against the outs. We conclude that these interest are entitled to constitutional protection from injury of the nature alleged as well as from injury resulting from inequality in election procedure.

Id. Finally, the panel decided that the allegations did not present non-justiciable questions. Id. at 271. Chief Judge Swygert dissented on the ground that the case raised a non-justiciable political question and not amenable to "'judicially discoverable and manageable standards.'" Id. at 272 (quoting Baker v. Carr, 369 U.S. 186, 217, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962)).

Following the remand, the parties entered into negotiations that produced a consent judgment entered on May 5, 1972. R.42; Consent Decree (May 5, 1972).*fn3 This judgment prohibits the defendants from "conditioning, basing or knowingly prejudicing or affecting any term or aspect of governmental employment, with respect to one who is at the time already a governmental employee, upon or because of any political reason or factor." R.42 at 4. The parties who agreed that they would continue to litigate the issue of whether political sponsorship or other political considerations could be considered in hiring new employees. Id. at 5.

Attempting to resolve the remaining hiring issue, the plaintiffs submitted request to admit. Each defendant filed an almost identical response. R.89; R.90; R.103; R.105; R.106; R.108. Essentially, the defendants admitted that many department and agencies in Cook County gave preference in hiring for many county jobs to those persons who had received political sponsorship from a Democratic Party official. Most of the jobs involved were not policy making positions and generally no public notice was given for those openings. The positions were normally classified as "temporary "despite the fact that many employees remained in them for years. The "temporary" status removed the job from the protection of the civil service statutes. The defendants also admitted that they believed that sponsorship was usually contingent on past political work or the expectation of political work in the future. The defendants also believed that a significant number of persons sponsored did some political work on behalf of candidates supported by the Democratic Party. Finally, the defendants admitted that they believed that this work helped elect candidates and that this perceived political advantage was one of the reasons that preference in hiring was given to those who has obtained sponsorship. Based on these admission, affidavits, testimony from political science experts, transcripts from prior proceedings, and election results, both the plaintiffs and the defendants filed motions for summary judgment.

On September 24, 1979, the district court granted the plaintiffs' motion for partial summary judgment on the issue of liability. In a lengthy opinion, discussed in detail below, the district court concluded that the patronage hiring practice infringed upon the plaintiffs' rights protected by the first and fourteenth amendments. According to the district court, the record supported the plaintiffs' allegations that the government's hiring policy gave the Democratic candidates "an actual, significant advantage in elections." 481 F. Supp. at 1355. The policy purposefully discriminated against the plaintiffs and the government had failed to provide a compelling interest furthered by the challenged practice. Id. The district court declared the patronage hiring practice unconstitutional.

The court deferred the issue of an appropriate remedy; therefore, it did not immediately enter a final judgment.*fn4 Instead, discussions concerning the appropriate remedy continued until April 4, 1983, when the district court entered judgment permanently enjoining the defendants from "conditioning, basing or knowingly prejudicing or affecting the hiring of any person as a Governmental Employee (other than for Exempt Positions), upon or because of any political reason or factor . . . . " R.231 at 4. Defendants, George Dunne, President of the Board of Commissioners of Cook County; Stanley Kusper, Jr., of Cook County Clerk; Thomas C. Hynes, Assessor of Cook County; the Forest Preserve District of Cook County; the Democratic Party County Central Committee for Cook County and its members; and Edward R. Vrdolyak, filed notices of appeal.*fn5 R.306; R.309; R.310. To evaluate their arguments on appeal, we must first examine the district court's opinion on entry of partial summary judgment for the plaintiffs.


District Court's Opinion

The district court began its analysis by rejecting the defendants' argument that granting any type of relief to the plaintiffs would interfere with the conduct of state government or violate the principles of comity and federalism. 481 F. Supp. at 1326-27. The court also rejected the plaintiffs' argument that the Supreme Court's decision in Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976), required the court to grant their motion for summary judgment. 481 F. Supp. at 1327-28. The court recognized that both the plaintiffs and the patronage practice at issue in this case differed from those in Elrod. ...

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