Nancy M. Caruso v. Elaine K. De Luca and City of Oakbrook Terrace

FLAUM, Circuit Judge,

concurring in the judgment.

I fully agree with the court’s decision that De Luca’s failure to reappoint Caruso to the Deputy Clerk’s position does not violate the First Amendment. With respect, I write separately because I believe our circuit precedent indicates that we analyze this situation under the Elrod-Branti political patronage line of cases, rather than under the Connick-Pickering line of cases.

As the majority appropriately notes, we have recognized that discharges based on political patronage or affiliation are best “characterized as a particular subset of the *672wider category of discharges based on the First Amendment.” Heideman v. Wirsing, 7 F.3d 659, 662 (7th Cir.1993). Although the line between discharges based on political patronage and those based on employee speech is certainly not bright, the Supreme Court has developed different tests for these two situations, and our mode of analysis should depend “on the manner in which the exercise of an employee’s First Amendment rights may impede the effective functioning of the public office in question.” Id. We have therefore found that

[b]oth Elrod and Branti embrace the notion that retaliation in response to political beliefs and political associations, which are typically manifested in the electoral process, may be warranted if the free expression poses a threat to the efficient conduct of a public office because the employee’s position requires political loyalty. Because the individual and governmental interests are essentially unvarying in patronage cases, the focus is less on the expressive activity than on the office occupied by the person engaging in that activity. Accordingly, patronage based dismissals ... are limited to persons holding policymaking positions.

Id. Thus, if an employee’s political beliefs or affiliations potentially jeopardize the effective functioning of a public office because of the inherent characteristics of the employee’s position, the political patronage cases provide the more appropriate analytical framework. Id.; accord Rodriguez Rodriguez v. Munoz Munoz, 808 F.2d 138, 144 (1st Cir.1986) (holding that Elrod-Branti standard should apply if political affiliation is legitimate requirement of employee’s position).

In Heideman, the plaintiff was a deputy sheriff who supported another deputy in his unsuccessful election bid against the incumbent sheriff. The plaintiff was discharged as a result of a heated barroom argument in which he vigorously supported his candidate. After examining the two different methods of analysis, the Heideman court applied the political patronage caselaw to determine whether the plaintiffs discharge violated the First Amendment. Heideman, 7 F.3d at 662. Because Heideman had political beliefs that could have interfered with the efficiency of the sheriff’s office and his performance as deputy sheriff, the majority analyzed the case under the Elrod-Branti framework. Judge Ripple, while concurring in the judgment, believed that Heideman’s discharge for political speech necessitated a Connick-Pickering analysis. Heideman, 7 F.3d at 664-65 (Ripple, J., concurring).

I respectfully find the majority’s attempts to distinguish the current case from Heide-man unconvincing. Although Caruso did not run for office as the candidate of any political party, Heideman specifically noted that

[t]he fact that [Upton v. Thompson, 930 F.2d 1209 (7th Cir.1991)] as well as this case involve the support of an individual candidate rather than party affiliation more broadly is of no consequence. In many counties, there is no real two-party system in local election contests. Competing candidates typically represent factions that owe only nominal allegiance to a political party. Voting is driven by factional rather than party adherence, as well as by the personalities of those competing for office.

Id. at 663, n. 4. Indeed, we have recently applied the Elrod-Branti analysis to a case where the discharged employee had no connection to a formal political party. See Wallace v. Benware, 67 F.3d 655 (7th Cir.1995) (examining circumstance in which discharged employee unsuccessfully ran against incumbent office holder). Caruso’s actions appear no less political because they were not taken on behalf of a political party.

The majority also seeks to distinguish Heideman by relying on De Luca’s testimony that she failed to rehire Caruso not because of political disloyalty but rather because De Luca lost confidence in the woman who would be her “second in command.” De Luca’s testimony, however, simply demonstrates her concern over a potential breakdown in the efficient operations of the Ciiy Clerk’s office caused by Caruso’s run for office. In fact, this characterization reflects a common dispute in political patronage cases — the plaintiff claims that she was discharged for political reasons and the defendant then justifies the discharge by asserting *673that she lost confidence in the employee because of the employee’s political activities. See, e.g., Upton v. Thompson, 930 F.2d at 1215-16 (holding sheriff justified in firing deputy who opposed his election because sheriff could not be confident deputy would support his policies); Livas v. Petka, 711 F.2d 798, 801 (7th Cir.1983) (holding prosecutor’s losing confidence in assistant for political reasons was sufficient justification for dismissal). De Luca’s loss of confidence and trust in Caruso can be directly traced to Caruso’s political activities. In effect, Caruso ran on a political platform of “I would be a better City Clerk than De Luca.” In light of this platform position, it is not surprising that De Luca believed that she could no longer have a productive working relationship with Caruso.

Since Caruso’s bid for office could have endangered the efficient functioning of the City Clerk’s office, due to the demands of Caruso’s position as Deputy Clerk, I conclude that this case should be analyzed employing the political patronage caselaw. See Rodriguez Rodriguez, 808 F.2d at 144-45 (applying political patronage cases to discharge of employee who ran for office against candidate his supervisor supported). I completely agree with the majority’s assessment that both the political patronage and the employee speech cases involve balancing an employee’s right of expression against the need of government to function effectively. In the great majority of cases, the two analy-ses will undoubtedly yield identical results. However, because the employee and governmental interests in political patronage cases vary little from case to case, the crucial inquiry in political patronage cases invariably centers on the responsibilities of the discharged employee’s position. Heideman, 7 F.3d at 662. Thus, the Elrod-Branti doctrine properly and efficiently focuses our inquiry on whether “political considerations are an appropriate requirement for the effective performance of the public office involved.”1 Upton, 930 F.2d at 1218 (quoting Livas, 711 F.2d at 800) (internal brackets omitted). Formulated differently, the test examines “whether the position held by the individual authorizes, either directly or indirectly, meaningful input into governmental decision-making on issues where there is room for principled disagreement on goals or their implementation.” Heideman, 7 F.3d at 663 (quoting Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir.1981)). In my judgment, as a result of Caruso’s political activities, De Luca lost confidence in the willingness and ability of her “second in command” to effect her policies. For Caruso to function'effectively as the Deputy Clerk, she needed to be able to work closely and productively with De Luca. Caruso’s election campaign against De Luca made this an unlikely possibility. I therefore concur with the majority’s decision that plaintiff’s First Amendment claim cannot survive summary judgment.

. Interestingly, the majority’s own analysis primarily focuses on Caruso's role as Deputy Clerk and how her bid for office would undermine the efficient functioning of the City Clerk’s office.