In Rutan the Court considered a challenge under the first and
fourteenth amendments to a wide variety of political patronage
practices within the Illinois state government. The Court
extended the rule first announced in Elrod v. Burns,
427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) prohibiting patronage
dismissals to lesser retaliatory measures including promotions,
transfers, recalls and hiring. Rutan, 110 S.Ct. at 2737-39.
Generally, federal cases are decided in accordance with the
law existing at the time of the decision. Goodman v. Lukens
Steel Co., 482 U.S. 656, 662, 107 S.Ct. 2617, 2621-22, 96
L.Ed.2d 572 (1987). In Chevron Oil Co. v. Huson, 404 U.S. 97,
92 S.Ct. 349, 30 L.Ed.2d 296 (1971) the Court announced an
exception to this general rule. In that case the Court
considered whether a decision abandoning the equitable doctrine
of laches in favor of a one-year state statute of limitations
governing actions under the Outer Continental Shelf Lands Act,
43 U.S.C. § 1331, should be applied retroactively so as to bar
an injured worker's action under the Lands Act.
There are three factors a court must consider in determining
whether to apply a decision prospectively only. First, whether
the new rule establishes a new principle of law, either by
overruling established circuit precedent on which litigants may
have relied, or by deciding an issue of first impression whose
resolution was not clearly foreshadowed. Second, the court must
weigh the merits and demerits in each case by looking to the
prior history of the rule in question, its purpose and effect,
and whether retroactive operation will further or retard its
operation. Third, the court must consider the inequity imposed
by retroactive application. Chevron, 404 U.S. at 106-07, 92
S.Ct. at 355-56.
Following the Court's 1976 decision in Elrod, three circuits
held that Elrod would be applied only prospectively. See Ramey
v. Harber, 589 F.2d 753 (4th Cir. 1978), cert. denied,
442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275 (1979); Aufiero v. Clarke,
639 F.2d 49 (1st Cir.), cert. denied, 452 U.S. 917, 101 S.Ct.
3052, 69 L.Ed.2d 421 (1985); Marino v. Bowers, 657 F.2d 1363
(3d Cir. 1981) (en banc).
In Marino the Third Circuit, in considering a Pennsylvania
county boardmember's challenge to his patronage dismissal,
found that, while it was possible through hindsight to
reconstruct a foreshadowing of the Elrod holding, the Elrod
decision effectively overruled a Pennsylvania Supreme Court
ruling upholding patronage dismissals on which the county board
had relied. Marino, 657 F.2d at 1368.
In considering the second Chevron factor the circuit court in
Marino saw "no reason why the prospective application of Elrod
would not be sufficient to vindicate the constitutional
principle it enunciated." Id. at 1369. The final and most
compelling factor is the inequitableness of retroactive
application. In Marino and Ramey the courts reasoned that
applying Elrod retroactively would require the displacement of
numerous governmental employees in favor of those who had been
discharged pursuant to the patronage system. In concluding its
analysis, the Marino court, as did the First and Fourth
Circuits in Aufiero and Ramey, held that Elrod should not be
Applying the Chevron analysis to the case sub judice yields a
(1) The first factor, whether Rutan established a new
principle of law, either by overruling clear past precedent on
which litigants relied or by deciding an issue of first
impression whose resolution was not "clearly foreshadowed,"
must be answered in the negative.
Following the Court's decision in Elrod and its subsequent
consideration of the issue in Branti v. Finkel, 445 U.S. 507,
100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), a split developed among
the circuits concerning whether the rule prohibiting patronage
dismissals would be extended to lesser forms of retaliation
such as hiring, promotion, and transfers.
In Delong v. United States, 621 F.2d 618 (4th Cir. 1980) the
Fourth Circuit held that Elrod's principle applied to patronage
practices short of dismissal only if they were the "substantial
equivalent of dismissal."
Id. at 624. In fact, the Seventh Circuit's opinion in the Rutan
case adopts the Delong analysis as "the more sound." Rutan v.
Republican Party of Illinois, 868 F.2d 943, 951 (7th Cir.
1989), aff'd in part and rev'd in part, ___ U.S. ___, 110 S.Ct.
2729, 111 L.Ed.2d 52 (1990).
On the other hand, in Bennis v. Gable, 823 F.2d 723 (3d Cir.
1987) the Third Circuit held that a public employee's patronage
based demotion fell within the prohibition of Elrod. Similarly,
in Lieberman v. Reisman, 857 F.2d 896 (2d Cir. 1988) the Second
Circuit held that a public employee stated a cause of action
under the Elrod principle by alleging that she was denied
compensatory and vacation time because of her partisan
affiliation and campaign for public office.
At the time of the events in the case at bar, October 1988,
there was no clear precedent in the Seventh Circuit governing
the question of whether the rule of Elrod would be applied to
patronage based transfers. It was not until 1989, in Rutan
itself, that the Seventh Circuit adopted the "constructive
discharge" theory of Delong and rejected the more liberal
Second and Third Circuit decisions. Therefore, the Court's
decision in Rutan did not overrule clear circuit precedent
which existed during October 1988. Nor can it be said, in light
of Bennis and Lieberman, which had both been decided by October
1988, that the Court's decision in Rutan was not foreshadowed.
Therefore, we must conclude that the first Chevron factor
counsels in favor of retroactive application.
(2) The second factor focuses upon whether retroactive
application of the rule announced in Rutan will further or
retard its operation. This process generally entails a
balancing of the benefits to be gained by applying Rutan
retroactively against the considerations of reliance, hardship,
injustice, and the impact on the "administration of justice."
Ramey, 589 F.2d at 759.
While it may be that applying Rutan only prospectively would
be sufficient to vindicate the constitutional principle in
question, Defendants would be hard pressed to argue that they
relied on the "constructive discharge" theory announced in
Delong such that retroactive application would be inequitable.
Thus, the second Chevron factor seems to have little role to
play in the analysis of this particular question.
(3) Turning to the third factor, the inequitableness of
retroactive application, Plaintiff seeks only damages for his
loss of outside employment opportunities. In each of the
decisions applying Elrod only prospectively the plaintiffs
sought injunctions restoring them to their prior positions as
well as damages. Thus, in the case at bar we are not confronted
with the specter of displacing "blameless" employees in favor
of the Plaintiff or in requiring the City of Springfield to
"double up" on its municipal employees to rectify past wrongs.
Thus, the third factor also suggests retroactive application.
In consideration of the foregoing analysis, we must conclude
that Rutan will be applied retroactively in this case.
Therefore, even assuming Plaintiff's case rested entirely upon
the rule of Rutan, Defendants' motion to dismiss on this ground
would be denied.
As will be discussed shortly, however, Plaintiff's case does
not depend solely upon the Rutan decision.
C. Qualified Immunity
Defendants' final argument in support of their motion to
dismiss is that, to the extent they are sued in their
individual capacities, they are immune from liability pursuant
to the doctrine of qualified immunity. Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982);
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039,
97 L.Ed.2d 523 (1987).
In Harlow the Supreme Court eliminated the subjective good
faith element from the qualified immunity analysis and held
that "government 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 known." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.
In short, the "qualified immunity analysis entails a purely
objective inquiry to determine whether at the time of the
alleged illegal act, the right asserted by the plaintiff was
clearly established in the particular factual context
presented." Auriemma v. Rice, 910 F.2d 1449, 1452-53 (7th Cir.
By October 1988, it was clearly established that political
patronage dismissals of non-policymaking employees violated the
first and fourteenth amendments. See Elrod v. Burns,
427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel,
445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Laidley v.
McClain, 914 F.2d 1386, 1394-95 (10th Cir. 1990) (qualified
immunity denied for alleged unlawful patronage dismissal).
On the other hand, it was not until June 1990, that this rule
was clearly extended to other activities such as transfers,
recalls, hiring, and promotions. Rutan v. Republican Party of
Illinois, ___ U.S. ___, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990).
Thus, to the extent that Plaintiff is suing the Defendants in
their individual capacities they are entitled to qualified
immunity on any claims based upon the Court's Rutan decision.
See Nunez-Soto v. Alvarado, 918 F.2d 1029, 1031 (1st Cir. 1990)
(qualified immunity applied to patronage based demotion).
In their memorandum Defendants noted that Plaintiff has also
sued them in their official capacities and therefore this
action must be considered one against the City of Springfield
as well. Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 83
L.Ed.2d 878 (1985). Municipalities cannot assert the defense of
qualified immunity. Owen v. City of Independence, 445 U.S. 622,
100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). However, municipalities
are not vicariously liable under § 1983 for the actions of
their employees. Monell v. New York City Dep't of Social
Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
It is unclear from Plaintiff's complaint whether he seeks to
actually sue the City of Springfield. The City was not named as
a separate Defendant and the complaint does not allege any
unconstitutional policy or custom pursuant to which the City
could be liable. We leave it to Plaintiff in his amended
complaint to clarify this question.
D. Non-Rutan Claims
In Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct.
1731, 20 L.Ed.2d 811 (1968) and Connick v. Myers, 461 U.S. 138,
103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) the Supreme Court
established that a public employee's right to speak on matters
of public concern was protected by the first amendment. If an
employee addresses matters of public concern, the court then
must engage in a balancing test, weighing the interest of the
employee, as a citizen, in commenting upon matters of public
concern with the interest of the State, as an employer, in
promoting effective and efficient public service. Knapp v.
Whitaker, 757 F.2d 827, 839 (7th Cir.), cert. denied,
474 U.S. 803, 106 S.Ct. 36, 88 L.Ed.2d 29 (1985).
Plaintiff alleges that "for many years [he] has openly
expressed his opinions of the Defendant, PAT WARD, with respect
to the manner in which the Defendant, PAT WARD, performed his
role as the Director of the Department of Public Safety. . . ."
¶ 7. However, Plaintiff then alleges that he was assigned to
the training division "because of the expressions of [his]
political views. . . ." ¶ 14A.
Defendants argue that every circuit court requires a degree
of specificity in pleading complaints under the civil rights
statutes. See Hobson v. Wilson, 737 F.2d 1, 30 n. 87 (D.C. Cir.
1984) (citing cases), cert. denied, 470 U.S. 1084, 105 S.Ct.
1843, 85 L.Ed.2d 142 (1985). While the cases collected in the
Hobson decision generally involved complaints containing only
conclusory, vague, and general allegations under the civil
rights statutes, Plaintiff in the case at bar has apparently
failed to plead the essential causative requirement for any
Defendants' motion to dismiss (construed as a motion for
summary judgment) must be denied insofar as it raises the
statute of limitations as a defense.
Plaintiff's complaint sufficiently raises a claim pursuant to
Rutan v. Republican Party of Illinois, ___ U.S. ___, 110 S.Ct.
2729, 111 L.Ed.2d 52 (1990) although the Defendants enjoy
qualified immunity on this claim to the extent that they are
sued in their individual capacities.
Qualified immunity does not apply to the Defendants as to
their official capacities; however, it is unclear whether
Plaintiff intends to proceed against the City of Springfield on
the theory of municipal liability. We leave it to Plaintiff to
clarify this in his amended complaint.
Furthermore, Plaintiff's complaint is deficient as to his
claim that the Defendants retaliated against him for his
criticism of the manner in which Pat Ward performed his role as
Director of the Department of Public Safety.
Ergo, Defendants' motion to dismiss (d/e 4) is ALLOWED and
Plaintiff is GRANTED leave to file an amended complaint within
20 days in conformance with this order.