Seventh Circuit Sustains Illinois Governor’s Action in Refusing to Reappoint Arbitrators

In a case that highlights some of the bitter infighting going on in Illinois regarding the state’s workers’ compensation system, the Seventh Circuit Court of Appeals affirmed a decision of the district court—although on different grounds—that dismissed a civil action filed by two former workers’ compensation arbitrators against the Illinois governor and two of his advisors, alleging that they had been terminated for exercising their First Amendment rights [Hagan v. Quinn, 2017 U.S. App. LEXIS 15069 (7th Cir., Aug. 14, 2017)]. Finding the former arbitrators were “policymakers,” as enunciated by the U.S. Supreme Court in Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980), the Seventh Circuit ruled that elected officials could replace high-level and confidential employees not only when those employees belonged to the “wrong” political party or faction, but also when they engaged in speech or other First Amendment activity that could undermine the policy or political goals of the officials accused of the retaliation.

Background

In 2011, plaintiffs and another arbitrator filed a due process action challenging the implementation of House Bill 1698, which terminated their six-year appointments under prior law. The district court granted summary judgment for defendants, and the Seventh Circuit affirmed, concluding that plaintiffs failed to demonstrate a clearly established right that had been violated by the legislation [see Dibble v. Quinn, 793 F.3d 803, 814 (7th Cir. 2015) (the “Due Process Suit”)].

In October 2011, while the Due Process Suit was pending, the Illinois governor declined to reappoint plaintiffs, which ended their employment. Two years later, plaintiffs filed the instant action against the governor and two of his advisors in their individual and official capacities. Plaintiffs alleged that the defendants had retaliated against them for filing the prior suit and that the retaliation violated the First Amendment to the United States Constitution and Illinois state law.

District Court Dismissed Claims

The district court dismissed plaintiffs’ First Amendment claims, holding that the Due Process Suit was not protected speech under the Connick-Pickering line of cases [see Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968)].

Seventh Circuit Affirms on Different Grounds

On appeal, the Seventh Circuit indicated it need not and did not decide whether the Due Process Suit was speech on a matter of public concern as is required for a government employee to show retaliation in violation of the First Amendment. It said plaintiffs’ claims failed for a more fundamental reason. Plaintiffs were policymakers who could be terminated—or, more precisely, not reappointed—for engaging in “speech on a matter of public concern in a manner that is critical of superiors or their stated policies” [Kiddy-Brown v. Blagojevich, 408 F.3d 346, 358 (7th Cir. 2005)].

First Amendment Rights

The Seventh Circuit stressed that employees do not give up all First Amendment rights when they accept government employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen about matters of public concern.

To establish a First Amendment retaliation claim, a public employee must show that (1) she engaged in constitutionally protected speech; (2) she suffered a deprivation because of her employer’s action; and (3) her protected speech was a but-for cause of the employer’s action. Initially, to establish a prima facie case of retaliation, the plaintiff must produce evidence that his or her speech was at least a motivating factor of the employer’s decision to take retaliatory action against the employee. Then, the burden shifts to the employer to rebut the causal inference raised by the plaintiff’s evidence. If the employer fails to counter the plaintiff’s evidence, then the plaintiff has established the but-for causation needed to succeed on his claim.

Policymakers Exception

In Elrod v. Burns and Branti v. Finkel (cited above), the U.S. Supreme Court prohibited government employers from dismissing most public employees on the basis of partisan affiliation, holding that the age-old practice of patronage firings violated the First Amendment. At the same time, however, the Court recognized an exception for employees who occupy policymaking or confidential positions. The Court said that elected officials may require political loyalty from such employees so that representative government is not undercut by tactics obstructing the implementation of policies presumably sanctioned by the electorate. If an employee’s private political beliefs would interfere with the discharge of his public duties, his or her First Amendment rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and efficiency.

The court concluded that, as gubernatorial appointees, Illinois workers’ compensation arbitrators “are the face of the administration in the workers’ compensation arena.” Accordingly, the governor was entitled to appoint point and retain only those arbitrators in whom he had confidence.