## In the 

# United States Court of Appeals
For the Seventh Circuit

____________
No. 06-2394

M ICHAEL WALSH , Plaintiff-Appellant

, v.

D AVID H EILMANNand V ILLAGE OF O AK LAWN , I LLINOIS , Defendants-Appellees

.

____________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 5754— Blanche M. Manning

, Judge

.

____________ A RGUED N OVEMBER 27, 2006—D ECIDED D ECEMBER 28, 2006

____________

Before E ASTERBROOK , Chief Judge , and R OVNERand S YKES , Circuit Judges

. E ASTERBROOK , Chief Judge . After being elected Mayorof Oak Lawn, Illinois, in 2005, David Heilmann appointed a new administrative hearing officer for the Village. The hearing officer’s post is equivalent to what other states would call a city judge or justice of the peace: the hearing officer adjudicates disputes under themunicipal code. Michael Walsh, who held the post between 2000 and 2005, contends in this suit under 42 U.S.C. §1983 that Heilmann replaced him because Walsh had backed the loser in th e election, and Heilmann wanted to put his own suppo rters in plum positions.2 No. 06-2394

According to Walsh, this violated the first amendment, as applied to political patronage in Elrod v. Burns , 427 U.S. 347 (1976), and its successors. But the district court dismissed the complaint after concluding that “administrative hearing officer” is the sort of position for which politics is a permissible consideration. The district court invoked Fed. R. Civ. P. 12(b)(6), and we doubt that this is the ri ght rule. The complaint states a recognized legal theory, af ter all. The court had to go beyond the complaint’s allegati ons to make a decision. But no harm has been done by th e shortcut. The duties of theposition are a matter of public record, having been established by law. Oak Lawn Ordinances §11-11-1 to §11-12-7. Summary judgment need not await discovery when the material facts are undisputed. (Rule 56(b) says that a defendant may move for su mmary judgment “at any time . . . with or without supporting affidavits”.) The statute book tells us all we need to know. Unlike job descriptions, which may bear little resemblance to a position’s actual duties, th e ordinance’s terms are not open to contest. The hearing officer adjudicate s all citations issued under Village ordinances and regu lations, unless state law commits the subject to judi cial resolution. Oak Lawn Ordinances §11-11-1, §11-12-1. The hearing officer’s portfolio includes not only vehicular matters (such as parking and village-sticker regu lations) but also the local housing and zoning codes. The village legislature has established a schedule of fi nes for vehicular offenses—for example, the fine for parking in a space reserved for handicapped persons is $150, rising to $250 if not paid promptly, see Oak Lawn Ordinances §11-11-9(A)—but has left all other subjects to th e hearing officer’s discretion. For non-vehicular offenses the hearing officer may impose any fine up to $50,000, unless state law sets a lower cap. Oak Lawn Ordinances §11-12-2(A)(8). It is thisNo. 06-2394 3

zero to $50,000 range, in which the hearing officer possesses considerable discretion, that led the district court to deem the position one that makes policy, and for which one’s views about wise public administration (whichis to say, one’s politics) are an appropriate consideration. See Branti v. Finkel , 445 U.S. 507 (1980). Should the Village go hard or easy on homeowners who don’t trim their hedges , mow their lawns, or rake their leaves in the fall? What about people who refuse to shovel their walks when snow falls? Orwho paint their houses puce? Or fail to end a nonconforming use when a zoning variance lapses? What should be done about people who leave rusting hul ks in their driveways, put neon signs in residential wind ows, or keep 500 cats? The Mayor and Police Chief won’t decide these matters; the administrative hearing office r will, by choosing levels of sanctions. Yet local political careers may turn on the answers; village mayors wh o can’t keep neighborhoods looking neat and tidy will not last long in office. (Even a Mayor of Chicago once discov ered that too much snow is fatal to a political career, and elsewhere in the Midwest the success of the fall leaf-r emoval campaign is the standard by which the people evaluate their mayors. See Kupstas v. City of Greenwood , 398 F.3d 609 (7th Cir. 2005).)

This is one reason why An drew Jackson campaigned for making judicial posts elective and why most states to this day allow the voters a say in who holds judicial office. If the “hearing officer” could be relabeled a “judge” and made the subject of electi on, the first amendment does not block an elected official from appointing someone who shares his view about enforcement priorities. Just as crackdowns on drunk driving require the cooperation of the state judiciary, crack downs on unkempt lawns and free-roaming dogs may requ ire the cooperation of an administrative hearing officer. Neither the judge nor the4 No. 06-2394

hearing officer operates in a zone where decisions are mechanical. That’s why we held inKurowski v. Krajewski
,848 F.2d 767, 770 (7th Cir. 1988), that politics is a permissible consideration for judicial positions (even those held for just a short time); the same is true of hearing officers who possess discretionover which laws receive how much enforcement.

Walsh would like us to believe that Kurowski is a sport that should be limited to appointed part-time judges when the full-time position is elected. Administrative hearing officers are different, he insists. But why should anything turn on the label? In federal practice, not even the label differs—“hearing offi cers” in the federal system were renamed “administrative law judges” more than 30 years ago. Although many federal ALJs have long tenure, others do not. Th e “administrative appeals judges” at several federal ag encies serve at the pleasureof cabinet officials so that the department’s administrative apparatus carries out policies adopted by the Executive Branch.

Many units of government delegate important decisions to middle management, and when they do this they may insist that the holders of the delegated power be reliable implementers of the elected officials’ platforms. See, e.g., Riley v. Blagojevich , 425 F.3d 357 (7th Cir. 2005) (holding that assistant pri son wardens in Illinois may be hired or fired on political grounds). Our situation is easier than Riley , for an administrative hearing officer is toward the top rather thanthe middle of the Village’s bureaucracy. Consider two close parallels: Pleva v. Norquist , 195 F.3d 905 (7th Cir. 1999), holds that amember of a city’s board of zoning appeals makes municipal policy and may be replaced on political grounds; Thompson v. Illinois Department of Professional Regulation , 300 F.3d 750 (7th Cir. 2002), holds that theNo. 06-2394 5

chief administrative law judg e of a state agency likewise wields enough discretionary authority that the electedofficials may apply political qualifications to the appointment. Both Pleva and Thompson made the sort of argument that Walsh advances: th at the scope of discretion any board member or ALJ may wield is hedged about by laws that the official mu st respect. True enough, but each time we held that the remaining discretion is enough to make it important that the office be held by someone with elected officials’ confidence.

If the people are to choose policy at the polls, the representatives they elect must be able to make enough changes in the bureaucracy to put the winning side’s program into effect rather than be frustrated by a permanent officialdom with its own ideas about governance. Walsh’s sponsors may return to office some day, and then it is they who will see the wisdom of a llowing change in the positions where discretion is reposed.

A FFIRMED

A true Copy:

Teste:

________________________________ Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—12-28-06