In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2394

MICHAEL WALSH,

Plaintiff-Appellant,

v.

DAVID HEILMANN and VILLAGE OF

OAK LAWN, ILLINOIS,

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.

____________

ARGUED NOVEMBER 27, 2006—DECIDED DECEMBER 28, 2006

____________

Before EASTERBROOK, Chief Judge, and ROVNER and

SYKES, Circuit Judges.

EASTERBROOK, Chief Judge. After being elected Mayor

of 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 the

municipal 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 the election, and Heilmann

wanted to put his own supporters 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 right rule. The complaint states

a recognized legal theory, after all. The court had to go

beyond the complaint’s allegations to make a decision. But

no harm has been done by the shortcut. The duties of the

position 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 summary 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, the ordinance’s terms are not

open to contest.

The hearing officer adjudicates all citations issued under

Village ordinances and regulations, unless state law

commits the subject to judicial 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 regulations) but also the local

housing and zoning codes. The village legislature has

established a schedule of fines 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 the 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 this
No. 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 (which

is 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? Or who 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 hulks in their driveways, put

neon signs in residential windows, or keep 500 cats? The

Mayor and Police Chief won’t decide these matters; the

administrative hearing officer will, by choosing levels of

sanctions. Yet local political careers may turn on the

answers; village mayors who can’t keep neighborhoods

looking neat and tidy will not last long in office. (Even a

Mayor of Chicago once discovered that too much snow is

fatal to a political career, and elsewhere in the Midwest

the success of the fall leaf-removal 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 Andrew 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 election, 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, crackdowns on unkempt lawns and

free-roaming dogs may require the cooperation of an

administrative hearing officer. Neither the judge nor the
4 No. 06-2394

hearing officer operates in a zone where decisions are

mechanical. That’s why we held in Kurowski 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 discretion over 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 officers” in the federal system

were renamed “administrative law judges” more than

30 years ago. Although many federal ALJs have long

tenure, others do not. The “administrative appeals

judges” at several federal agencies serve at the pleasure

of 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 prison 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 than the middle of the Village’s

bureaucracy. Consider two close parallels: Pleva v.

Norquist, 195 F.3d 905 (7th Cir. 1999), holds that a

member 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 the
No. 06-2394 5

chief administrative law judge of a state agency likewise

wields enough discretionary authority that the elected

officials may apply political qualifications to the appointment. Both Pleva and Thompson made the sort of argument that Walsh advances: that the scope of discretion

any board member or ALJ may wield is hedged about

by laws that the official must 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 allowing change in the positions where discretion is reposed.

AFFIRMED

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-28-06