In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-2666

MARTINA MONTGOMERY,

Plaintiff-Appellant,

v.

THOMAS P. STEFANIAK, JR.,

SALVADOR VASQUEZ, and

CLARENCE D. MURRAY,

Defendants-Appellees.

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Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:04-CV-49—Rudy Lozano, Judge.

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ARGUED MARCH 1, 2005—DECIDED JUNE 9, 2005

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Before KANNE, EVANS, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. Martina Montgomery was fired

from her job as a court probation officer after her supervisors

learned that she and her fiancé had purchased a car from

a dealership employing a probationer whom she supervised.

Montgomery sued, claiming among other things that her

termination infringed her right of intimate association with

her fiancé and that she was denied procedural and substantive due process. The district court dismissed all of Montgomery’s wrongful termination claims. She appeals, and we

affirm.
2 No. 04-2666

I. History

Montgomery sued a number of defendants, including the

car dealership, the court for which she worked, and the

county in which the court was located. But we can ignore

the majority of her complaint because this appeal addresses

only Montgomery’s claims against three judges on the court

where she was employed. We recite the facts as they are

provided in the complaint and present them in the light

most favorable to Montgomery. See Cole v. U.S. Capital,

Inc., 389 F.3d 719, 724 (7th Cir. 2004).

Montgomery accompanied her fiancé, Charles Heffner,

to Shaver Motors in Merrillville, Indiana. Heffner tried to

purchase a car, but his application for financing was denied

because he had a poor credit history. Montgomery, however,

had better credit than Heffner and the salesman told her

that he could arrange financing for her to purchase a Toyota

Corolla. Montgomery declined at first, but the salesman

ultimately persuaded her to purchase the car. Montgomery

and Shaver then signed a sales contract for the Toyota, and

the couple left with the car. After Montgomery left the

dealership, however, Shaver unilaterally changed the terms

of the financing agreement. Specifically, Shaver paid off a

balance Montgomery owed on a Mercury automobile she

already owned and added that money into the price of the

Toyota. Shaver claims it did so to improve the creditworthiness of Montgomery’s application for financing, but Montgomery says that she never agreed to such an arrangement

and that the salesman never told her that the Mercury loan

would have any impact on her application. Montgomery

learned of Shaver’s action several days later when the

finance company to which Shaver had sent her application

called to tell her both that the Mercury was now included in

the transaction and that it had approved her loan on

significantly less favorable terms than those promised by

Shaver.
No. 04-2666 3

1 Montgomery’s complaint in the district court also lists Judge

Clarence Murray as a defendant but neither her complaint nor her

brief on appeal makes any further mention of him. Accordingly, all

claims against Judge Murray are waived.

Montgomery rejected the changes to the agreed-upon

financing terms and immediately returned the Toyota to

Shaver. But when she brought back the car, Shaver demanded that Montgomery reimburse the dealership the

money it had paid on the Mercury. When Montgomery

refused, claiming that she had never agreed to such an

arrangement, Shaver threatened to report her alleged delinquency to her supervisors at the probation office. Eventually

Shaver made good on its threat and called Montgomery’s

supervisor in an effort to harass Montgomery and pressure

her to pay.

Shaver’s call prompted the supervisor to investigate, and

he discovered that a probationer supervised by Montgomery

was employed at Shaver. The record does not reflect the

nature of the probationer’s employment, but he apparently

played no role in the sale of the Toyota. Nonetheless, the

court has a code of conduct that forbids probation officers

from transacting business with any company employing

probationers under their supervision. Thomas Stefaniak,

Jr., Senior Judge of the Criminal Division of the Lake

County Superior Court, who ultimately is responsible for

probation department personnel, ordered Montgomery suspended and eventually fired for violating this policy. As

permitted by the court’s employee grievance system,

Montgomery requested administrative hearings to appeal

both her suspension and termination. Judge Stefaniak assigned Judge Salvador Vasquez to hear the appeals, and

Judge Vasquez upheld Judge Stefaniak’s decisions.1

Montgomery raised three claims against the judges. First,

she claims that they interfered with her right of intimate

association with her fiancé because she says she had a
4 No. 04-2666

constitutional right to purchase a car for him from Shaver.

Montgomery also alleged that the judges denied her substantive and procedural due process by not providing her a

pre-termination hearing. The district court dismissed the

judges as defendants, see FED. R. CIV. P. 12(b)(6), and made

its dismissals final, thus permitting this appeal, see Greenwell

v. Aztar Ind. Gaming Corp., 268 F.3d 486, 490 (7th Cir. 2001);

FED. R. CIV. P. 54(b).

II. Analysis

A. Freedom of Intimate Association

Montgomery first argues that the judges’ enforcement of

the code of conduct interfered with what she describes as

her freedom of intimate association with her fiancé. The

defendants respond that Montomery’s relationship with

Heffner did not excuse her from complying with the rules

governing her employment.

The Supreme Court has explained that the Constitution

protects two distinct forms of free association. The first,

freedom of expressive association, arises from the First

Amendment and ensures the right to associate for the

purpose of engaging in activities protected by the First

Amendment. See Roberts v. United States Jaycees, 468 U.S.

609, 617-18 (1984); Klug v. Chicago Sch. Reform Bd. of

Trustees, 197 F.3d 853, 857 (7th Cir. 1999). The second, freedom of intimate association, protects the right “to enter into

and maintain certain intimate human relationships.”

Roberts, 468 U.S. at 617. The freedom of intimate association “receives protection as a fundamental element of personal liberty,” id. at 618, and as such is protected by the

due process clauses. See Swank v. Smart, 898 F.2d 1247,

1251-52 (7th Cir. 1990); Mayo v. Lane, 867 F.2d 374, 375

(7th Cir. 1989); Bergren v. City of Milwaukee, 811 F.2d

1139, 1144 (7th Cir. 1987); Shondel v. McDermott, 775 F.2d
No. 04-2666 5

859, 865-66 (7th Cir. 1985); Akers v. McGinnis, 352 F.3d

1030, 1035 (6th Cir. 2003); Griffin v. Strong, 983 F.2d 1544,

1547 (10th Cir. 1993).

We pause to note that the parties have confused the two

forms of free association in their briefs and focus their arguments exclusively on the balancing test applicable to

expressive association claims raised by public employees.

See Connick v. Myers, 461 U.S. 138 (1983); Pickering v.

Board of Education, 391 U.S. 563 (1968). Under this test, a

plaintiff must first show that her associational activity

relates to a matter of public concern; if she succeeds, the

court then balances her interests against those of her employer. See Klug, 197 F.3d at 857. But the Connick/

Pickering test applies only to those free association claims

based on expressive association. See id.; Weicherding v.

Riegel, 160 F.3d 1139, 1142 (7th Cir. 1998); Messman v.

Helmke, 133 F.3d 1042, 1045-46 (7th Cir. 1998); Balton v.

City of Milwaukee, 133 F.3d 1036, 1039-40 (7th Cir. 1998);

Gregorich v. Lund, 54 F.3d 410, 414 (7th Cir. 1995); Griffin

v. Thomas, 929 F.2d 1210, 1212-14 (7th Cir. 1991). The

Connick/Pickering test’s requirement that the plaintiff’s

association relate to a matter of public concern is inapplicable to a claim based solely on intimate association because

a plaintiff’s right of intimate association does not depend on

her also exercising her separate and distinct right to engage

in expressive activity. See Anderson v. City of LaVergne, 371

F.3d 879, 881 (6th Cir. 2004); Parks v. City of Warner

Robins, 43 F.3d 609, 615 (11th Cir. 1995).

The proper analysis for Montgomery’s claim is provided

by Zablocki v. Redhail, 434 U.S. 374, 383-87 (1978), and

other circuits have used this framework to address claims

brought by public employees claiming interference with an

intimate association. See Akers, 352 F.3d at 1039-40 (corrections employees fired for personal relationships with prisoners); Singleton v. Cecil, 176 F.3d 419, 423 (8th Cir. 1999)

(en banc) (adopting analysis of panel decision in Singleton
6 No. 04-2666

v. Cecil, 133 F.3d 631, 634-35 (8th Cir. 1998)); Montgomery

v. Carr, 101 F.3d 1117, 1124 (6th Cir. 1996) (public school

teacher required to transfer to another school after she

married another teacher); Parks, 43 F.3d at 615-16 (police

officer forced to resign after she married a more senior

officer); see also Keeney v. Heath, 57 F.3d 579, 580-81 (7th

Cir. 1995). Zablocki establishes a two-part inquiry: if the

challenged policy imposes a direct and substantial burden on

an intimate relationship, it is subject to strict scrutiny; if the

policy does not impose a direct and substantial burden, it is

subject only to rational basis review. Zablocki, 434 U.S. at

383-87; see also Smith v. Shalala, 5 F.3d 235, 238-39 (7th

Cir. 1993).

Montgomery’s claim fails the Zablocki test. The defendants

do not dispute that the relationship between two people

engaged to be married qualifies as intimate, and we will

assume that to be the case. But the defendants here did not

“interfere directly and substantially” with Montgomery’s

right to associate with Heffner when they fired her for violating the code of conduct. Compare Zablocki, 434 U.S. at

387 (statute requiring persons owing child support to obtain

a court order before marrying or face criminal penalties

directly and substantially interfered with their right to

marry), with Akers, 352 F.3d at 1040 (rule restricting

correctional officers from non-work contact with prisoners

was not direct and substantial burden because rule neither

largely prevented employees from marrying nor prevented

them from marrying a large portion of population). Indeed,

the interference here was quite minimal. Montgomery

alleged only that the code of conduct prohibited her from

purchasing a car from Shaver. But she was free to purchase

a car for her fiancé from any car dealership that did not

employ one of her probationers and likewise remained free

to associate with Heffner in any other way she pleased. The

court’s rule prohibiting probation officers from conducting

business with companies employing their probationers may
No. 04-2666 7

have caused Montgomery some minor inconvenience, but it

did not substantially impact her ability to associate with

Heffner.

We thus review the code of conduct only under a rational

basis test and conclude that the portion of code challenged

by Montgomery bears a rational relationship to a legitimate

government interest. See Thielman v. Leean, 282 F.3d 478,

485 (7th Cir. 2002). The Sixth Circuit addressed a similar

case in which two state correctional employees were fired

for violating a rule barring any outside contact with

prisoners or probationers. See Akers, 352 F.3d at 1033-34.

The court concluded that the rule met the rational basis test

because the state has a legitimate interest in preventing

fraternization between its prisoners and correctional

employees. Id. at 1039. The judges here likewise have a

legitimate interest in ensuring that probation officers conduct themselves in a manner that avoids even the appearance of impropriety. Probation officers have significant

discretion when making sentencing recommendations and

supervising probationers, and their decisions can greatly

impact the liberty of convicted individuals. The code of

conduct at issue here is rationally related to the court’s

interest in ensuring the impartiality of its probation

officers. Accordingly, the district court correctly dismissed

Montgomery’s freedom of association claim.

B. Procedural Due Process

Montgomery next argues that the district court erred in

dismissing her procedural due process claim because she

says the court’s personnel policy affords probation officers

the right to a pre-termination hearing and argues that this

purported policy created a property interest in her continued employment. But Indiana law provides that probation

officers serve “at the pleasure of the appointing court.” Ind.

Code § 11-13-1-1(c); see also Ind. Code § 33-33-45-12(a)(2)
8 No. 04-2666

(Lake County probation officers “serve at the pleasure of the

senior judge”); In re Madison County Probation Officers’

Salaries, 682 N.E.2d 498, 500 (Ind. 1997) (per curiam).

These statutes establish that Montgomery was an at-will

employee who had no property interest in continued employment as a probation officer. See Moulton v. Vigo County,

150 F.3d 801, 804-05 (7th Cir. 1998). Despite the statutory

language, Montgomery might still have established that she

had a property interest in her job if she had shown that her

employer adopted additional rules or regulations that gave

her such a property interest. See id. at 805. Instead, she

alleged only that the court’s personnel policy provided her

with the right to a pre-termination hearing. “The mere fact

that an employee is entitled to a hearing before [s]he is

terminated, however, does not establish that [s]he has a

property right in [her] job.” Id. Accordingly, the district

court properly dismissed this claim.

C. Substantive Due Process

Lastly, Montgomery argues in a cursory fashion that the

district court erred by dismissing her substantive due process claim. The scope of substantive due process, however,

is very limited and protects plaintiffs only against arbitrary

government action that “shocks the conscience.” Tun v.

Whitticker, 398 F.3d 899, 902 (7th Cir. 2005) (internal citation and quotation omitted). Nothing about the defendants’

actions here shocks the conscience. As discussed above,

Montgomery had no property interest in her continued

employment and the judges thus did not deprive her of

a constitutionally protected right when she was fired.

Furthermore, all that Montgomery claims the judges did

was wrongfully terminate her employment, and this is insufficient to state a substantive due process claim unless

she also shows that the defendants violated some other

constitutional right or that available state remedies are
No. 04-2666 9

inadequate. Wudtke v. Davel, 128 F.3d 1057, 1062 (7th Cir.

1997). She has not done so.

III. Conclusion

The district court correctly dismissed all of Montgomery’s

claims against the three judges. Accordingly, the judgment

is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-9-05