MEMORANDUM AND ORDER
FOREMAN, District Judge:
This matter is before the Court on the following motions: a motion to dismiss by defendants William Roberts and the Saline County Republican Central Committee (Doc. 22); a motion to dismiss by state officials Genelle Jones, William Peerman
, and Kirk Brown (Doc. 27); plaintiff's motion to strike the state officials' supplemental response (Doc. 73); plaintiff's motions to amend the complaint (Docs. 51 and 54); plaintiff's Motion to Certify Action as Class Action (Doc. 21); and the State Officials' Motion to Dismiss Plaintiff's Class Allegations (Doc. 29).
The plaintiff, Gary Vickery, brought this action against certain state officials and members of the Republican party, alleging that the defendants maintain and operate a political patronage system in which political and financial supporters of the Republican Party of the State of Illinois are favored in regard to state employment as highway maintainers. The plaintiff asks the Court to declare the system illegal and unconstitutional and to enjoin its operation. The plaintiff also seeks compensatory and punitive damages for persons who have suffered injury as a proximate cause of the defendants' conduct. The action was filed pursuant to 42 U.S.C. §§ 1983 and 1988 and, therefore, the Court has jurisdiction under 28 U.S.C. § 1343.
In September 1991, Vickery and the Illinois Department of Transportation entered into a contract whereby plaintiff would work under a six-month contract as a highway maintainer. Plaintiff had taken the highway maintainer exam and received an "A" grade. For the next six months he performed his duties in an acceptable manner. However, in April 1992, at the expiration of his contract, Gene Bethel was awarded the six-month contract instead of Vickery. Bethel is now working under a second six-month contract. Plaintiff maintains that he was and is more qualified for the position than Bethel.
Vickery alleges that the defendants acted under color of law in maintaining and operating a political patronage system in Illinois that denied him a second six-month contract. He asserts that state officials Genelle Jones, William Peerman, and Kirk Brown were motivated by political considerations such as whether the individual was a Republican, was sponsored by an influential Republican, or was a financial or other supporter of the Republican Party. The plaintiff asserts that Jones was employed in the governor's office and told the Illinois Department of Transportation (IDOT) who should be awarded the contracts. Brown was Secretary of IDOT and Peerman worked in IDOT's personnel department.
The complaint alleges that in making these employment decisions, the state officials took advice from defendant Roberts, who was chairman of the Saline County Republican Central Committee, and other Republican Party officials in Illinois. The complaint further alleges that Roberts considered the individual's voting record and support of the Republican Party, and that the Saline County Republican Central Committee and its counterparts in other counties screened employees based on the individual's voting record, support, and potential future support of the Republican Party. As a result, the plaintiff alleges that the state officials favored those persons supported by the Republican Party when approving the six-month contracts for highway maintainer, possibly hundreds of times over the last two years.
The plaintiff claims that his duties as a temporary highway maintainer were the same as the duties for a permanent highway maintainer as established under the Illinois Personnel Code, 20 Ill. Comp. Stat. 415/1 to 415/19c.1 (1993). The plaintiff alleges that there is no provision in the Personnel Code that would allow the duties of a permanent civil service position to be performed under successive six-month contracts. He alleges that the temporary positions are used to avoid hiring permanent employees. Thus, he contends that the use of the six-month contracts is designed to circumvent the prohibition against political patronage hirings in Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990).
Plaintiff seeks to represent both classes of highway maintainers -- i.e., (1) all persons denied the position of highway maintainer for periods of six months due to their political affiliation or non-affiliation or their lack of support by the Republican Party; and (2) all persons denied the permanent position of highway maintainer due to their political affiliation or non-affiliation or their lack of support by the Republican Party.
In Count I of his first amended complaint, the plaintiff contends that he was denied a second six-month contract as highway maintainer because of the defendant's patronage system. This count, which involves only the class of individuals denied the six-month positions, alleges that the denial of this position due to political affiliation or non-affiliation violates the putative class members' rights as protected by the First and Fourteenth Amendments. Count II prays this Court to declare the awarding of the six-month contracts a subversion of the position of permanent highway maintainer and, therefore, involves only the class of persons denied the permanent positions.
The state officials and the Republican Party officials have filed separate motions to dismiss the claims against them. The Court also must address the plaintiff's motion to certify the action as a class action, the plaintiffs motion to strike the state officials' supplemental response, and the plaintiff's two motions to amend the complaint.
I. Claims Against the Republican Party Defendants
Defendants Roberts and the Saline County Republican Central Committee move this Court to dismiss Counts I and II pursuant to Rule 12 of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. For purposes of the defendants' motion, all well-pleaded allegations of the complaint must be taken as true. Wolfolk v. Rivera, 729 F.2d 1114, 1116 (7th Cir. 1984). The test to be applied on a motion to dismiss is whether "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). A plaintiff need not set out in detail the facts upon which a claim is based, but must allege sufficient facts to outline the cause of action. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985).
The plaintiff's civil rights claim is based upon Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990), in which the Supreme Court held that state officials cannot make certain employment decisions based upon the employee or job applicant's political affiliation or support. The party defendants acknowledge that under Rutan, state officials cannot use political information in connection with employment decisions for public employees. However, the defendants argue that the Court's holding does not prohibit the gathering of information by a political organization, such as voting records or financial contributions, or the transfer of that information. The Court agrees.
Nothing in the Rutan decision suggests that it is unconstitutional for political parties to disseminate political information or make recommendations based upon political affiliation or support. In fact, the Supreme Court has held that the use of political affiliation information is acceptable for some government positions, policymaking or otherwise. Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980); see also Elrod v. Burns, 427 U.S. 347, 372, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) (plurality opinion) ("Our decision . . . does not outlaw political parties or political campaigning and management. Parties are free to exist and their concomitant activities are free to continue."). Thus, if political information can properly be considered by state officials in certain circumstances, obviously the political parties may collect and disseminate such information.
Moreover, the party defendants argue that their First Amendment rights would be infringed if they were prohibited from engaging in such activities. It is without question that political parties are afforded the protection of the Constitution. See N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 2 L. Ed. 2d 1488, 78 S. Ct. 1163 (1958) (affirming an association's right "to engage in association for the advancement of beliefs and ideas."). This protection includes freedom of speech and association. "Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association." N.A.A.C.P. v. Button, 371 U.S. 415, 431, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963) (citing Sweezy v. New Hampshire, 354 U.S. 234, 250, 1 L. Ed. 2d 1311, 77 S. Ct. 1203 (1957) (plurality opinion)).
The First Amendment protects not only the right to speak one's mind on political issues, but also "the right to engage in 'vigorous advocacy'. . . ." Buckley v. Valeo, 424 U.S. 1, 48, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976). "Advocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy or the passage or defeat of legislation." Id.
In this case, the political party is advocating that a particular person should be hired, as opposed to elected, for a government position. However, the fact remains that the political party is expressing its views on a governmental matter and, therefore, is engaged in political expression. Accordingly, the Court concludes that it is not unconstitutional for a political party to compile information, make it available to state officials or advocate that the state hire a particular individual. What Rutan prohibits is the use of that political information by the state hiring authority.
It is clear that the party defendants did not make the actual employment decisions for the highway maintainer positions. The plaintiff's complaint expressly alleges that IDOT officials Brown and Peerman had the legal authority to approve or disapprove the employment contracts. This same paragraph of the complaint goes on to allege that Peerman and Brown had "cooperated with the patronage system by. . . delegating to Jones, Roberts, and the Saline County Republican Central Committee and other officials the decisions for the six-month contracts for highway maintainer." However, it is obvious from reading the complaint as a whole that neither Roberts nor the committee had the power to approve the contract or that they actually hired applicants.
In his brief opposing the motion to dismiss, the plaintiff asserts that "those persons whom the Party Defendants (Roberts and the Committee) named got the jobs." Plaintiff's Response to the Motion to Dismiss at 3. But all this alleges is that Roberts and the Committee recommended people for the positions. Plaintiff continually claims that these defendants "decided" who would fill the position, but it is never alleged that they actually hired applicants. To the contrary, the complaint alleges that the result of the patronage system is that "Jones, Peernan, and Brown favored those persons who are supported by the Republican Party when those Defendants approved six-month contracts for the position of highway maintainer." Amended Complaint P 23 (emphasis added). Thus, the plaintiff has not alleged that the state officials "delegated" responsibility to the party defendants in the sense that there was a formal transfer of authority. Rather, the Court construes the complaint to allege only that the state officials in essence "rubber-stamped" the party's recommendations.
Simply making a recommendation as to who should be hired for a particular position does not make out a violation of Rutan. Thus, the party defendants cannot be held liable for the constitutional violations alleged under Count I with respect to the persons who were denied temporary highway maintainer positions. Likewise, the plaintiff's failure to allege that the party defendants had actual hiring authority is also fatal to any claim against these defendants in Count II, which seeks a declaration that the awarding of six-month employment contracts violates and subverts the provisions of the Illinois Personnel Code.
The Court, therefore, finds that the plaintiff has failed to state a claim for which relief can be granted against the party defendants.
Accordingly, the Court hereby GRANTS the motion to dismiss Counts I and II against defendants Roberts and the Saline County Republican Central Committee. The Court notes that this dismissal is WITHOUT PREJUDICE; thus, to the extent that the plaintiff intended to allege that the party defendants had actual hiring authority, the plaintiff may seek leave to amend the complaint accordingly.
In one of his pending motions to amend, the plaintiff seeks leave to add various other Republican Party officials as defendants, such as the Republican Party of the State of Illinois, state party chairman Harold Smith, and other Republican Party county organizations and their officials. The Court notes, however, that the proposed amendment raises essentially the same claims that the Court is dismissing against Roberts and the Saline County Republican Committee. Based upon tile Court's decision that these allegations do not state a claim that would entitle the plaintiff to relief, the Court hereby DENIES plaintiffs second Motion to Amend the Complaint (Doc. 54).
II. Claims Against the State Officials
The state officials move this Court to dismiss the amended complaint for failure to state a claim on the grounds that Rutan does not apply to temporary employees such as plaintiff Vickery. In the alternative, they move to dismiss the damage claims against them under the doctrine of qualified immunity.
A. Motion to Dismiss
The state officials contend that Rutan's protection does not extend to temporary employees because the rationale for the decision makes it clear that the Supreme Court meant to limit its holding to permanent, or career, employees. The defendants also argue that temporary employees are more analogous to independent contractors who, under Seventh Circuit authority, may be hired or fired for political reasons. The Court finds these arguments unpersuasive.
As a preliminary matter, the Court notes that the state officials have filed a supplemental response in support of their motion to dismiss. The plaintiff has filed a motion to strike the supplemental response. Under Rule 15(d) of the Federal Rules of Civil Procedure a party may file supplemental pleadings upon leave of court Defendants have not made a motion to file the supplemental response. Therefore, plaintiffs motion to strike (Doc. 73) is GRANTED and the defendants' supplemental response is hereby STRICKEN.
The Supreme Court's political patronage decisions have evolved through three landmark cases decided over a span of fourteen years. The first two cases dealt with the constitutionality of discharging or threatening to discharge employees solely for not supporting the political party in power. Bran ti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980); Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976). In Elrod, non-civil service employees of the Cook County sheriff's office brought a class action alleging that they were fired or threatened with dismissal for the sole reason that they were not affiliated with or sponsored by the political party in power. The Court held that the practice of patronage dismissals infringes upon an individual's political beliefs and association, which "constitute the core of those activities protected" by the First and Fourteenth Amendments. 427 U.S. at 356 (plurality opinion).
Therefore, restraints upon these interests are permitted only if such restraints "further some vital government end by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained must outweigh the loss of constitutionally protected rights." Id. at 363.
In Branti, two assistant public defenders employed by the county brought a civil rights action alleging that they were about to be dismissed solely because of political affiliation. The Supreme Court reaffirmed its prior decision that "the First Amendment prohibits the dismissal of a public employee solely because of his private political beliefs." 445 U.S. at 517. The Court, therefore, held that dismissed employees were not required to prove that they had capitulated to political coercion (e.g., that they had changed their political party or worked for the party's candidates); rather, it was sufficient to prove that they had been discharged "solely for the reason that they were not affiliated with or sponsored by the Democratic party." Id. at 516-17.
Both Elrod and Branti recognized an exception to this general rule -- i.e., they stated that "party affiliation may be an acceptable requirement for some type of government employment" Branti, 445 U.S. at 517. In Elrod, the plurality and concurring opinions suggested that patronage dismissals might be appropriate in cases involving policymaking positions. 427 U.S. at 367 (plurality opinion); id. at 374-75 (Stewart, J., concurring). The Branti decision clarified this exception, stating "the ultimate inquiry is not whether the label 'policymaker' or 'confidential' fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." 445 U.S. at 518.
The Rutan decision extended the Elrod and Branti prohibition to other types of employment decisions. In Rutan the governor of Illinois had issued an executive order that prohibited state officials from hiring any employee, filling any vacancy, creating any new position, or taking any similar action without the governor's permission. The plaintiffs brought suit to challenge the governor's use of political considerations in giving his permission for these hiring, transferring, promoting, and rehiring decisions. The Supreme Court held that the Elrod-Branti analysis was equally applicable to this type of political patronage. More specifically, the Court rejected the argument that these types of decisions were not punitive in nature and, therefore, do not chill the exercise of protected belief and association by public employees.
With respect to transfers, promotions and recalls, the Court stated:
Employees who do not compromises their beliefs stand to lose the considerable increases in pay and job satisfaction attendant to promotions, the hours and maintenance expenses that are consumed by long daily commutes, and even their jobs if they are not rehired after a "temporary" layoff. These are significant penalties and are imposed for the exercise of rights guaranteed by the First Amendment. Unless these patronage practices are narrowly tailored to vital government interests, we must conclude that they impermissibly encroach on First Amendment freedoms.
110 S. Ct. at 2736. The Court further stated that patronage hirings place similar burdens on First Amendment rights by denying access to a state job in the first place.
Today, this Court decides a question that was not expressly addressed in the Elrod-Branti-Rutan trilogy -- i.e., whether the political patronage rules apply to temporary as well as permanent employees. Based upon the Supreme Court's analysis in the prior cases, the question must be answered in the affirmative.
First, and foremost, the Court notes that the Supreme Court has repeatedly rejected the argument that there is no right or entitlement to public employment and, therefore, political patronage does not infringe upon the employees' First Amendment rights. "Even though a person has no 'right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely." Id. at 360-61 (quoting Perry v. Sindermann, 408 U.S. 593, 597, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972)). Thus, the Court has long recognized that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests especially, his interest in freedom of speech." Perry, 408 U.S. at 597.
Under this analysis, an applicant for a temporary position is indistinguishable from an applicant for a permanent position. Both are seeking a state paycheck and other benefits, if any, that may be provided by the state. The temporary nature of the job may affect the size and number of benefits provided to the successful applicant and the length of time in which they are available. However, that does not detract from the fact that the applicant is being denied a state job for however long it may last and for whatever remuneration is available. In fact, the plaintiff in Perry could be considered a temporary employee because he was employed under a one-year contract and had filed suit because of his employer's refusal to renew the contract for another year. 408 U.S. at 594. Thus, the Court concludes that the rule set forth in Perry and adopted for patronage cases in Elrod, Branti, and Rutan was intended to apply to temporary employees.
Secondly, although the Supreme Court did not expressly state that its decisions applied to temporary employees as well as permanent employees, the Court's rationale for the Elrod-Branti-Rutan prohibition has equal force in both settings. "Under our sustained precedent, conditioning hiring decisions on political belief and association plainly constitutes an unconstitutional condition, unless the government has a vital interest in doing so." Rutan, 110 S. Ct. at 2739. Applicants for temporary positions have the same First Amendment rights to their personal political beliefs and associations as do applicants for permanent positions. Accordingly, regardless of whether a particular job is temporary or permanent, the government must demonstrate (1) a vital governmental interest that would be furthered by its political hiring practices; and (2) that the patronage practices are narrowly tailored to achieve that governmental interest.
The Supreme Court has discussed several proposed governmental interests in the Elrod-Branti-Rutan trilogy. However, the Court's decisions have made no distinction between temporary and permanent employees, and the defendants have not presented any principled reason for recognizing such a distinction. For example, the Court recognized that the government has an interest in securing effective employees. Rutan, 110 S. Ct. at 2737. But the Court held that this interest can be met by discharging, demoting, or transferring employees whose work is deficient. Id. Similarly, the "government's interest in securing employees who will loyally implement its policies can be adequately served by choosing or dismissing certain high-level employees on the basis of their political views." Id. This analysis is equally applicable to employees hired on a temporary basis as well as on a permanent basis.
The Supreme Court also recognized that the government has an interest in preserving the democratic process. However, the Court stated that political patronage is not the least restrictive means of achieving this end. Id.; Elrod, 427 U.S. at 368-69. Again, this analysis does not change when applied to temporary positions as opposed to permanent jobs.
The Court recognizes that some types of jobs may be subject to political patronage. However, in order to qualify for this exception, the hiring authority must demonstrate "that party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti, 445 U.S. at 518. The defendants have not done so in the case at bar. To the contrary, the plaintiffs assert that the State of Illinois itself has classified the job of permanent highway maintainer as a position that does not qualify for this exception. This Court can find no vital governmental interest in requiring temporary workers to be affiliated with the party in power when the government acknowledges that it does not have such a vital interest with respect to employees hired for the same position on a permanent basis.
The Court further notes that several First Circuit decisions that pre-dated Rutan found "no practical difference" between permanent and career employees for First Amendment purposes. See, e.g., Cheveras Pacheco v. Rivera Gonzalez, 809 F.2d 125, 127-28 (1st Cir. 1987). That court stated that Elrod and Branti clearly apply to an employee's right to retain his public employment and that there is no difference between employees discharged from permanent employment and those who fail to receive a new appointment. Id.4 "Any other result would seriously undermine Elrod and Branti because local governments could pass laws providing that the jobs of nonpolicymaking employees extend only from election to election, and that the new officeholder is entitled to make all new appointments." Id. at 128. That is exactly what the plaintiff has accused the defendants of doing in the case at bar.
Additionally, the Court notes that the First Circuit has extended the Elrod-Branti rule to persons employed under contract. The court in Cordero v. De Jesus-Mendez, 867 F.2d 1, 21(1st Cir. 1989), stated that "contract employees [may not] be discharged in violation of their first amendment right to free political speech and association." The court reiterated that the lack of an expectation of continued employment does not justify dismissal based on private political beliefs. Id.
The defendants also assert that temporary employees are analogous to independent contractors who may be hired or fired for political reasons.
The Seventh Circuit has declined to extend the Elrod-Branti decisions to independent contractors. LaFalce v. Houston, 712 F.2d 292 (7th Cir. 1983). In Triad Associates, Inc. v. Chicago Housing Authority, 892 F.2d 583, 587 (7th Cir. 1989), the court refused to reconsider LaFalce and reaffirmed that the Elrod-Branti prohibition against discharge of public employees for partisan reasons does not apply to independent contractors. More recently, the Seventh Circuit again declined to overturn LaFalce and reiterated that "political favoritism in the awarding of public contracts is not actionable." Downtown Auto Parks, Inc. v. City of Milwaukee, 938 F.2d 705, 710 (7th Cir.), cert. denied, 116 L. Ed. 2d 657, 112 S. Ct. 640 (1991).
Thus, it is undisputed that independent contractors may be hired or fired for political reasons. The issue is whether temporary employees are analogous to independent contractors so that they too may be hired or fired for political reasons. The Court finds they are not analogous.
The LaFalce court noted that the basis of the Elrod-Branti prohibition against patronage "is that public employees would be discouraged from expressing their true political views if it might cost them their jobs." 712 F.2d at 293. Rejecting the argument that independent contractors will be similarly discouraged, the court stated:
If the contractor does not get the particular government contract on which he bids, because he is on the outs with the incumbent . . . it is not the end of the world for him; there are other government entities to bid to, and private ones as well. It is not like losing your job.
Id. at 294. When an independent contractor loses a contract, the contractor presumably still has other business. Each contract generally represents only a portion of the contractor's work and the loss of one contract does not put the contractor out of work entirely. However, a temporary job is usually an individual's sole source of employment. Just as the loss of a permanent job puts the permanent employee out of work entirely, the loss of a temporary job also puts the temporary employee out of work entirely.
Although the LaFalce court stated that unless the government worker cannot find another job the "loss will not be a total catastrophe," it did recognize that government jobs are generally more lucrative than private sector jobs. Id. The court stated:
Many government workers could not find employment at the same wage in the private sector; and the prospect that a protracted period of search following discharge might well result in a substantially less well paid job would cause many government workers to flinch from taking political stands adverse to their superiors. An independent contractor would tend we imagine to feel a somewhat lesser sense of dependency.