Warren E. Burger: We’ll hear arguments next in Number 1520, Elrod against Burns.
Thomas A. Foran: Mr. Chief Justice and may it please the Court. This case involves an alleged violation of the First Amendment right of political association of four public employees. They were process servers and Court attendants in the Office of the Sheriff of Cook County whom I argue in behalf of, incident to discharges or threat of discharge for political consideration or more commonly described the so called patronage practice of requesting political sponsorship for either appointment to certain public jobs or to continue in employment in public jobs. In this particular case, the plaintiffs below, who are the respondents here, were employees of the Sheriff’s Office in December 1970 when an incumbent Republican was replaced by the Democrat Elrod who was elected the prior month. The plaintiffs were not in job categories like some others in the Sheriff’s Office which were protected by civil service or other nonpolitical or merit system of job category. They were not protected in anyway by contract or agreement or legislation against a summary discharge. The plaintiffs stated in their case that they are Republicans in that they have originally obtained their jobs in the Sheriff’s Office by having Republican sponsorship by Republican officials in order to be employed by the Republican Sheriff.
William H. Rehnquist: They stated that in their complaint?
Thomas A. Foran: Yes sir, they did. They alleged that they were discharged because they were Republicans and could not or would not obtain democratic sponsorship to continue on their jobs. Now, in the complaint there are number of allegations concerning a practice of discharging non-civil service employees in Cook County by the Sheriff’s Office on the assumption that a sheriff of a different political party would discharge any employee who didn’t pledge allegiance to the party of the new sheriff, who didn’t agree to work for the party and candidates of the party of the new sheriff, would not contribute a portion of their wages to the party of the new sheriff or would not obtain political sponsorship by the new sheriff’s party. Now, neither the complaint nor the affidavits in this case allege that these four respondents were required or that they were even told that they might be required to meet any of the conditions that were set forth as a practice other than this political sponsorship condition. I might add that the respondents here have referred the Court to a stipulation of fact by the sheriff and the Sheriff’s Office in a companion case, the Shakman case, also out of the Seventh Circuit. We do not object to that statement of facts of the operation of the Sheriff’s Office. We feel that it does fairly state what the factual situation is in the Sheriff’s Office. The District Court below denied the preliminary injunction and dismissed the case for failure to state a claim.
William H. Rehnquist: Can you tell from the Shakman case, Mr. Foran, whether a Republican might be employed in the tradition of the Sheriff’s Office by a Democratic Sheriff if he obtained a democratic sponsor?
Thomas A. Foran: Mr. Justice Rehnquist the stipulation of the Sheriff’s Office and I think I can describe it in summary very quickly. There are 3,000 employees in the Sheriff’s Office in Cook County. About 500 of them fit into a kind of large category that includes the types that you were mentioning. About 500 of them are either supervisory, are un-sponsored by any political person or are holdovers from previous administrations almost in affect career employees, might well have been sponsored by a Republican. About 1300 of the employees -- of the 3000 employees are protected by a legislatively created merit system. This includes the sheriff’s police and the corrections officers who run the county jail and the house of corrections and the juvenile facility and about 1200 are in this -- of the 3000 are in this patronage area where they are appointed only if sponsored by a political figure in the party of the existing sheriff.
William H. Rehnquist: But now is it theoretically possible at least for a Republican employee within this 1200, when a Democratic sheriff comes to power, if he could get a sponsorship from a Democrat, he could be retained?
Thomas A. Foran: Oh, yes sir and it often does happen.
Potter Stewart: That’s the record in this case shows that --
Thomas A. Foran: Yes sir.
Potter Stewart: -- somebody was about to be terminated and the sponsorship came in the next day and he was put back on to the payroll.
Thomas A. Foran: That’s correct sir. That is correct.
Potter Stewart: But there is a quid pro quo from that, I gather, from reading the record the -- along with the sponsorship, comes the obligation to the next election to work for the Democrat.
Thomas A. Foran: Yes sir. Political support is expected with respect to those patronage employees.
William H. Rehnquist: But is there a change of registration required?
Thomas A. Foran: No sir, not specifically nor is there any such allegation in the complaint. The requirement is that one supports the Democratic candidate for sheriff for his reelection at least and in all likelihood that he become a worker for the Democratic Party in his --
William H. Rehnquist: Well, is it -- I realize there comes point at which probably a stipulation doesn’t exhaust -- doesn’t cover. Is it also required that he support that Democratic candidate for Senator and for Governor as well as the Democratic candidate for sheriff?
Thomas A. Foran: That’s a hard question to answer, Mr. Justice Rehnquist. I think for the purposes of this argument and for the purposes of this Court’s decision that the patronage practice of sponsorship would presume on the part of the sponsoring Democrat that this man was going to be worker generally for the Democratic Party. In the lower court, the District Court, Judge Power dismissed the case on the basis of Alomar versus Dwyer. While it was pending on appeal the Seventh Circuit came to down with the Illinois State Employees Union versus Lewis where a Republican Secretary of State had in effect done the same thing to a large number of Democrats after he took over as the Secretary at the State’s Office. I did mention that Shakman case and I should say what the Shakman case had previously held. The Shakman case was an independent who was running for constitutional delegate and in effect a kind of an nonpartisan election and in the Shakman case, he had argued that because the major political parties had a patronage system in the republic employment that he was, his voter candidate rights to equal protection in his election, his attempt to become a constitutional delegate had been interfered with. So that it came up in a slightly different context than the Lewis case or this case or Alomar versus Dwyer, but nevertheless was related in the instance of the patronage system being in question. So that the core issue in the case is really a very specific one. Is there a First Amendment prohibition against an elected public official discharging a non-civil service employee for his failure to obtain political sponsorship by the party that the elected official wishes him to. Perhaps in a different context are the respondents' rights to their jobs which are conditioned on their political affiliation, the equivalent of their right to free speech. Only the Seventh Circuit Court of Appeals has ruled that they are. The Second Circuit the said no, the Fourth Circuit of the said no D.C. Circuit has said no. This Court has in recent years unequivocally held that the right of political association is not absolute and is subject to reasonable restriction or limitation in the public interest, in the Letter Carrier’s case, in the Buckley versus Valeo, this Court has so held. This Court and I think in an important case to consider because it is the companion case to the case upon which the respondents rely, in Board of Regents versus Roth. The Seventh Circuit Court of Appeals had ruled that non-tenured teacher who was fired without reason being given to him, did not have such a property interest in his job that it would generate due process rights. Now, the Seventh Circuit had ruled that he did. The Seventh Circuit said that he was entitled to a hearing. This Court said no. He was a non-tenured teacher and he had alleged that his First Amendment rights have been violated, but had been fired for no reason given. Now -- so that this Court has ruled that he had no such property and interest which would justify protection under the Due Process Clause or under the Fourteenth Amendment. The argument then must be by the respondents that this non-tenured, these non-tenured employees who had no contract, no agreement, who had got their job well-knowing since they had already receive their jobs politically sponsored, that it was the time of -- type of job that needed political sponsorship, whether those people had such a right in their job that their political association was like free speech and that their interest as individuals in free speech overrode any governmental interest that might exist in a partisan political public service, a governmental interest in that which could condition or restrict their right to political association. It seems to me that while the respondents do here argue that there is no legitimate governmental interest in or at least no compelling governmental interest, in a partisan political public service that in that area which has not been articulated, we must strongly disagree with that position. Their position is based on this type of argument. Since some courts, including this Court, have agreed that non-partisanship in public service and public office is under some circumstances, some legislative acts, the Hatch Act is the most obvious, campaign financing, that if in certain areas of Government that it is good to have a nonpartisan tenured security-oriented employee that therefore necessarily political public service is bad.
William H. Rehnquist: But I would have thought all this Court said in the Hatch Act cases was that Congress thought it was desirable?
Thomas A. Foran: Exactly, Mr. Justice, exactly. And in this case, at a different level, we have the same situation here. The Illinois State Legislature and the County Board of Cook County have both legislatively acted to say with respect to certain officers, the police and the corrections officers in the Sheriff’s Office, they are merit.
William H. Rehnquist: By implication they have said with the respect to the rest of them “He'd who lived by sword shall perish by the sword.”
Thomas A. Foran: In effect, yes. I think and I replied briefly commented on the criticism by the respondents of Chief Justice Bell’s factual analysis of that and suggested that perhaps in exchange, is he who has not sinned should cast the first stone which --
Thurgood Marshall: Suppose the Legislature of Illinois passed a statute which said only Democrats maybe employed in the Sheriff’s Office.
Thomas A. Foran: May be wrong. They did not do that here.
Thurgood Marshall: And the difference is --
Thomas A. Foran: The difference is this.
Thurgood Marshall: The legislation didn’t work.
Thomas A. Foran: Yes sir, and the difference is further than this.
Thurgood Marshall: But a state officer can do it?
Thomas A. Foran: A state officer who is an elected public official under a -- in a political public office can with particular employees who have not been made a part of a nonpolitical public service.
Thurgood Marshall: But the legislature couldn’t do it?
Thomas A. Foran: Yes sir, could not. They could do it. They can only say, you can appoint.
Thurgood Marshall: Can the Governor do it?
Thomas A. Foran: A Democrat, yes sir.
Thurgood Marshall: A Democratic Governor?
Thomas A. Foran: Or Republican Governor.
Thurgood Marshall: Could issue a proclamation saying that only Democrats can work?
Thomas A. Foran: Oh no, no sir. What he can say --
Thurgood Marshall: But county sheriff can, who else can besides the county sheriff?
Thomas A. Foran: Any public official with respect to public jobs that are not designated as nonpolitical public jobs. See --
Byron R. White: What state is the writ in that -- in having that to be the case?
Thomas A. Foran: Well, let me give this as the state -- as the state interest.
Byron R. White: I take it you -- you seem to say that it’s essential to find the state interest?
Thomas A. Foran: I think it is.
Byron R. White: You do?
Thomas A. Foran: I think it is essential to show that there is some state interest in partisanship.
Byron R. White: You don’t think -- you don’t think the Sheriff’s Office or Illinois is permitted to just say to these people “You’re just fired. We don’t need to give any reason at all.”
Thomas A. Foran: I think they could say that, yes. They could say, “You’re just fired,” but they didn’t--
Byron R. White: They said we are firing you because you belong to the wrong party?
Thomas A. Foran: Well, they said you we fired you because you won’t switch over and help us politically.
Byron R. White: And you think to do that if you’re going to say that in they must find some substantial state interest of pretty strong one. Now, what is it?
Thomas A. Foran: Party. It is this Mr. Justice White. Throughout the history of this country as the distinguished from the European public service, the concept of political public service is crucial to the growth of the Government for a very -- for many reasons.
Byron R. White: What is that growth system?
Thomas A. Foran: To the growth and good operation, the efficient operation of the Government.
Byron R. White: You mean it’s essential into the elective process or essential to the --
Thomas A. Foran: No to the operation of the Government.
Byron R. White: To the operation of the government. Why is it essential to the operation of the Government?
Thomas A. Foran: Because of the very human instinct.
Thurgood Marshall: It helps out the party, that’s why.
Thomas A. Foran: Well, much more than that, Mr. Justice Marshall. An elected public official --
Thurgood Marshall: (Inaudible)
Thomas A. Foran: Well, not just the political argument, but the political argument -- well, the political argument is also a good one to this extent that the sheriff who has been elected by the people to exercise his management discretion, if he is to exercise his management discretion consisting with his commitment to the people who elected him, the people who work for him should be loyal to him and he should have faith that they are loyal to him and he should have faith that they are intending to encourage his reelection as the political figure that he is in that operation of the Government. That’s --
Thurgood Marshall: Would it be enough to protect your interest if you drew a line, if he divided the employees where it was important that obviously that they followed his lead and others that --
Thomas A. Foran: Well --
Byron R. White: Apparently, the legislature -- the legislature thinks there is some way of doing that?
Thomas A. Foran: Well, there is by the way some comment in the Lewis case about policy making, non-policy making, but I think that --
Byron R. White: (Inaudible)
Thomas A. Foran: Well, but then by the way Mr. Justice White, I think does include a fallacy. Government at the local level is not run from the quarterdeck; it is run from the engine room. What Government gives in the local area a service to the people, it services sewers, it services court operations, it services summons, it takes care of buildings, it runs transportation systems, it collects the garbage, it keeps the water pure.
Warren E. Burger: Mr. Foran, if the legislature of Illinois wanted to, it could make all of the 3,000 employees of the Sheriff’s Office subject to their civil service, could they not?
Thomas A. Foran: Yes sir.
Warren E. Burger: They could make the sheriff, barring some provision in your Constitution, they could make the sheriff a civil servant, could they not?
Thomas A. Foran: We do have that constitutional problem, Mr. Chief Justice, but they could with many officers, they could eliminate. The legislature could eliminate.
Warren E. Burger: And you tell us that --
Thomas A. Foran: They haven’t.
Warren E. Burger: -- 2800 of these people approximately or 1800 rather, about 1800 are freelancers and 1200 are subject to the civil service program.
Thomas A. Foran: Yes sir, the freelancers by the way include the policy makers Mr. Justice White and freelancers is a good way to describe it.
William H. Rehnquist: Well, if you’re going to have a political organization in the city of the size of Chicago someone who is elected sheriff has to have some jobs to give out when he gets in, doesn’t he?
Thomas A. Foran: That’s the way it’s always run and by the way not just in Chicago, Mr. Justice Rehnquist.
William H. Rehnquist: Well, in lots of other places.
Thomas A. Foran: It has happened throughout the country’s history, throughout the country’s history. Now, ordinarily when we talk about policy making, non-policy making Mr. Justice White that’s where we get into the quarterdeck concept because we talk about the perquisite of office of the elected executive. The President of the United States, I think Jefferson, for instance when he came into office one time said, “Well, I think I’ll wait for the normal attrition in jobs,” and then he said “few died, but nobody” –-
Byron R. White: I’m still waiting for you tell me state history is in having the elevator operator, be Republican rather than a Democrat, or a Democrat rather than a Republican?
Thomas A. Foran: Well, when we say this Mr. Justice --
Byron R. White: Do you accept Mr. Justice Rehnquist’s statement, this is just essential to have the two-party system work?
Thomas A. Foran: I think it --
Byron R. White: This certainly isn’t essential for the Government?
Thomas A. Foran: Well, I do believe it’s essential for the efficiency of Government. And it’s simply this, look at the plethora of cases that are coming up in all of the Federal District Courts, by the way in line with your question, Mr. Justice Marshall, of what happens in a civil service system that shuts out the disadvantaged, that shuts out minorities, that shuts out the aged, that shuts out the infirm, because of the requirements for testing. All over the country were running in to that problem with the fact that we don’t have proper proportions of our society, proper geographic distribution within our voting districts because of civil service regulations. The patronage system, Mr. Justice White, is the way that the minority people in this country got into the saying that this record -- pardon?
Harry A. Blackmun: Are you saying that on this record, the minorities are shut in or taken into this system, on this record?
Thomas A. Foran: Yes sir.
Harry A. Blackmun: Could you point out specifically where that is so?
Thomas A. Foran: Oh, well on this record. I’m sorry Mr. Justice Blackmun, not on this record I cannot, but I can say that in the civil service area of public employment, there are cases all over this country that are indicating that not sufficient numbers of minorities are able to get into public service under the Civil Service System.
Harry A. Blackmun: The civil service segment here, I’m zeroing then on your non-civil service people and I want to know whether your records here as constructed or shows that minorities and others are taken in as your other bland and broad remarks just now would indicate.
Thomas A. Foran: Not under this record here Mr. Justice.
Lewis F. Powell, Jr.: What type of jobs do these 1209 civil service people hold? You mentioned janitors and people who provided various services and how is a line drawn between the civil service and the non-civil service employees?
Thomas A. Foran: The civil service in the Sheriff’s Office are the County Sheriff’s police, and the corrections officers who take care of the county jail and the house of corrections and the juvenile court facility which are all under the jurisdiction of the sheriff.
Lewis F. Powell, Jr.: Are these categories as prescribed by the legislature?
Thomas A. Foran: Yes sir, as a merit system of employment. The other -- all other categories which include the supervisory level of the police, the warden of the county jail, the majors supervisors of divisions and many of the Court attendant’s process servers, at least some. For instance, in the Court attendants all of the judges select their own, the sheriffs. There’s no political patronage involved in that. Although there is a judicial patronage involved in it.
Lewis F. Powell, Jr.: Is it statewide in Illinois?
Thomas A. Foran: Pardon?
Warren E. Burger: Does the system you described apply statewide? Would you have this in Springfield, for example?
Thomas A. Foran: Oh yes. As a matter fact, in the Shakman case, there are comments in the brief about the consent judgment. There are 103 defendants in the Shakman case, 103 republican committeemen, defendants who have not consented to the -- in the Shakman case. Elrod is not consented in the Shakman case. The Chicago Park District is not consented in the Shakman case. Recently, the new Governor of Illinois -- recently the new Governor of Illinois argued that the consent decree of the predecessor Governor did not apply to him. By the way, he’s no -- he doesn’t look like he’s going to be the new Governor for long because he was recently -- he didn’t win a nomination. But the partisan political service, Mr. Justice White, just to get back to that point, it’s consensus what it is, is the necessity of consensus to operate any conceivable operation, the necessity of loyalty. By the way, I think that Mr. Justice Stevens used a good phrase of it. He called the necessity of effective supervision of employees, for an employee to know that he is subject to your discipline if he doesn’t do what you want him to do, that he must me loyal to you in your endeavor to convince the people that your representations to them that you could do this job or based on your political commitment.
William H. Rehnquist: Well, there’s a more practical reasons than that too, aren’t there, Mr. Foran? Who’s going to circulate the sheriff’s nominating petitions? I don’t know if you have petition requirement in Illinois, we did in Arizona and every elected political officer had to have a couple political people on his staff not to make policy, but circulate his nominating petitions and to do things like that.
Thomas A. Foran: Well, that’s correct but I don’t think that’s the interest that I’m talking of.
Byron R. White: How are we going to embrace this view that it’s essential to make the elective process work? You just don’t seem to want to do. You want to put it on the operation of the Government?
Thomas A. Foran: Yes I do Mr. Justice White, because I say this when a man is elected by the people to operate a service Government, the people elect him to exercise his discretion as he sees fit. One of the prerequisites of that discretion is his right to appoint and one of the things --
Byron R. White: If it is so important, I’m surprised the Illinois legislature has removed from this category these very important blocks of employees.
Thomas A. Foran: Well, I think because some particular jobs --
Byron R. White: Those would be the very ones that you would like to know are supporting you “tooth and toenail?”
Thomas A. Foran: Partly, Mr. Justice White, there are certain types of jobs that simply should not be subject to political control. Historically, firemen and policemen are highly tended to become civil service under the legislatures.
Warren E. Burger: For the last 100 years?
Thomas A. Foran: Yes sir, since 1890.
Warren E. Burger: All political appointees, are they not?
Thomas A. Foran: Yes sir.
Byron R. White: If you want to -- if you’d like to have the unqualified support of some people in your office you’d like to have it from the policeman or other serving the people and state?
Thomas A. Foran: Well, that’s right but the legislature took it away from them.
Byron R. White: Yes.
Thomas A. Foran: And they took the FBI away and they took the CIA away and -- but the legislature did that, the legislature has the right to do that and the legislature has the right not to do it and in this case they didn’t do it. And what the respondents are asking here to do, are asking this Court to do it for the legislature.
Byron R. White: I understand that but the reason that you give, it seems to me is it considerably illuminated by what the legislature of Illinois has done. I mean, it wouldn’t if you would just frankly say that what the party said, the elective process has to work and the party system to work.
Thomas A. Foran: I think, the necessity of generating consensus, Mr. Justice White is terribly important, the opportunity for a political official to have a chance to be reelected, to continue his progress. I think that is terribly important and that is a mixture of the government and the political process.
Warren E. Burger: Like the parallel between Congressional staffs, the Congressman picks all of his staffs and when the Congressman or a Senator is defeated, they all are out of employment, are they not?
Thomas A. Foran: I’d say that’s a fair analogy, Mr. Justice Burger.
Warren E. Burger: Are there any civil servants working for a senator or Congressman?
Thomas A. Foran: No sir, not that I know of. They all by the way and by the President’s power to appoint is used there to generate consensus for his program. I’d like to save the couple of minutes if I could --
Warren E. Burger: Very well.
Thomas A. Foran: I just ran out of out it --
Warren E. Burger: Mr. Tucker?
John C. Tucker: Mr. Chief Justice and may it please the Court.
Warren E. Burger: I’m not sure this record shows that in the federal system or in any of the state systems, a tenured service came in to being.
John C. Tucker: Well, I’m not certain I can answer that directly. I suppose you would start back with the original federal civil service laws back in the period following the assassination of Garfield when civil service reform began in the 1800.
Speaker: 1880s.
John C. Tucker: Yeah, 1880s, yes sir. However, I think on the historical aspect of this case as we’ve indicated in the brief, it is not correct that the patronage or spoil system has always been a part of our Government since constitutional times for whatever relevancy that has to the fundamental constitutional issues in this case. I think really it has very little because we are dealing with rights which this Court has just declared and it’s not that it’s anything new but certainly just recently again declared are at the very core of the First Amendment in the per curiam decision in Buckley.
William H. Rehnquist: If it’s not anything new and the First Amendment has been with us since 1791, why did Andrew Jackson feel free to say, “to the victors belong the spoils”?
John C. Tucker: Because Mr. Justice Rehnquist I think the Court -- this Court for many years up until the late 40s or early 50s engaged in what was considered to be a right privileged distinction with respect to public employment and they said the Court in substance, said well there is no right to public employment and therefore there are no benefits that come with it. It’s purely a matter of discretion and you can even require someone to give up their constitutional rights. However, once you accept the proposition which Mr. Justice Stewart, again not a new proposition but I supposed culminating in Mr. Justice Stewart’s decision in the Sindermann case, that there are certain things which you cannot require as public employees. There are certain things for which you cannot take away the benefit, one of which is --
William H. Rehnquist: Now, wait a minute. You agree that the thing is a balancing test. You would agree that the Governor’s principal assistant in Springfield, his special counsel certainly has to give up his constitutional rights if he’s a Republican and wants to be counsel to the democratic government and the Governor tells him that’s fine but you register as a democrat, he’s got to do that to get that job, doesn’t he?
John C. Tucker: Yes sir. Well, I don’t know whether you have to register as a democrat, I would say this that I have no objection to the policy/non-policy distinction which the court below in this case and Mr. Justice Stevens in the Lewis case devised, I have no objection to that. I don’t think that’s the same thing as a balancing test with respect to fundamental constitutional rights, however, that’s a different kind of balance, that’s --
William H. Rehnquist: To get a policy-making job than under your analysis, if it’s a Republican administration and you really -- and you’re a democrat you may well have to give up some of your constitutional rights.
John C. Tucker: Now just a moment, I think you have to distinguish between the policy-making and the non-policy making. I --
William H. Rehnquist: I am talking about policy making.
John C. Tucker: You’re now on policy making.
William H. Rehnquist: Right.
John C. Tucker: I don’t think that you’re -- when you’re on policy making if you want to say you have to give up certain rights, I suppose that’s right, you do. The chances are you’ve already made a determination with respect --
Byron R. White: (Inaudible) in the interest in what overrides --
John C. Tucker: Oh, I’m not saying -- I’m not saying that the interest -- there’s a governmental interest that overrides the --
Byron R. White: Well, how do you arrive at it? How do you arrive at the fact that policy maker has to get -- that it’s alright to fire the policy-making office holder?
John C. Tucker: I think you get there by virtue of another distinction that Justice Stevens drew in Lewis which is there are certain kinds of jobs and I think this is the same kind of thing that the jobs that the Chief Justice was talking about, congressional administrative aides. There are certain kinds of jobs in which a personal loyalty and an agreement with the governmental philosophy of the officeholder is essential. And I don’t think you find -- you know, that’s not what the patronage system is about. We’re not talking about those jobs and we’re talking about the patronage system.
Byron R. White: Now, how do you -- how do you say in that kind of job whatever the gentleman’s First Amendment interests are, they are not sufficient to keep him in the job?
John C. Tucker: Well --
Byron R. White: Is that yes or no -- isn’t there a yes or no to that?
John C. Tucker: I suppose there is and the answer would have to be no, but I don’t think that’s the way it works out as a practical matter because First Amendment --
Byron R. White: He doesn’t keep his job?
John C. Tucker: No sir, he does not keep his job, but at that point in time, his, as a policy-maker, the person or public office holder who brought him in there is leaving. His whole philosophy so to speak insofar as it relates to that job is leaving, I don’t think at that point you can really say that the congressional aide or the -- to take it to the sublime, the Secretary of State is fired because he is a republican or because he is a democrat, he simply leaves with the group that was in office, the group of people who ran that public office.
Byron R. White: How does this say that he’s fired because of his political beliefs?
John C. Tucker: You can, do you say?
Byron R. White: Well, I would think so.
John C. Tucker: Well, perhaps so, perhaps so.
Byron R. White: He’s fired because he doesn’t -- very likely he doesn’t agree with his new boss?
John C. Tucker: I think he is --
Byron R. White: What more do you want to say?
John C. Tucker: I think more realistically, he is fired, Mr. Justice White because he is not really fired, he leaves with the administration and it’s more of a personal than a political matter. Many times someone perhaps of a different political persuasion comes in. But the distinction that I think we have to keep in mind is we are not talking about those kinds of personnel. We are talking -- we’re not talking about congressional aides. We’re talking about process servers, bailiffs, janitors, window washers, street cleaners --
Warren E. Burger: The Sindermann case that you referred to and in I think Roth, wasn’t there a considerable emphasis placed on the expectation of a continued employment?
John C. Tucker: Not in Sindermann, Your Honor. In Roth there was and I want to make it very clear that we --
Warren E. Burger: Isn't it the whole area that we’re talking about though?
John C. Tucker: No sir, I--
Warren E. Burger: In this Court’s positions?
John C. Tucker: Mr. Chief Justice, I think that when you talk about due process rights it does. We are not talking about due process in this case. We are talking about fundamental First Amendment rights and I think that Mr. Justice Stewart in Sindermann made that distinction very clear when he said and when the Court said in that case that even where there is no expectation of continued employment, and therefore, discharge discretionary, there are some reasons for which you cannot discharge people and the most basic of them is the exercise of fundamental First Amendment rights. And the right, the basic right to freedom of political association as this Court has held in Kusper versus Pontikes, in Buckley more recently, every member of the Court agreed that the right of freedom of political association is at the core of the First Amendment.
William H. Rehnquist: In Buckley also, though the Court in sustaining the public financing provisions indicated that Congress could go a pretty far distance in funding the two major parties differently than minority party.
John C. Tucker: Well, that’s true Mr. Justice Rehnquist, but I think that the, what the Court as I understand it, comes to as far as that part of Buckley is concerned is simply well, we can find nothing on this record to suggest that there is anything discriminatory about this set up. Your Honors have always made it clear in the Letter Carriers case, in United Public Workers and I think in Buckley that where fundamental rights such as political association are involved, a statutory scheme that is going to infringe on this and of course here we don’t have a statutory scheme, we got an ad hoc determination of the sheriff of Cook County, but any public official or legislative or congressional enactment that would infringe on those rights must be extremely narrowly drawn and must be totally neutral and nondiscriminatory. This is -- pardon me?
Warren E. Burger: You say there is no statutory scheme, I thought there was a statutory scheme?
John C. Tucker: No, I don’t believe --
Warren E. Burger: The rights that approximately almost half of the employees of the Sheriff’s Office are tenured civil service employees?
John C. Tucker: That’s correct.
Warren E. Burger: That’s a statutory scheme, isn’t it?
John C. Tucker: That is a statutory scheme, but in --
Warren E. Burger: Do you agree with your friend, Mr. Foran that the legislature could make everyone in the office of the sheriff except the sheriff himself a tenured civil servant?
John C. Tucker: Yes sir, yes sir.
Warren E. Burger: But they picked out only 1200 of them?
John C. Tucker: Well, they picked out two departments, the police and the corrections department. But I think Mr. Justice Marshall answered that question and in the first place, the legislature has not acted. The legislature has simply not acted with respect to these and many, many other employees. It’s not that they devised a scheme with respect to how they could or could not be discharged or said specifically that no Republican may remain in office or no person shall be in office or be a public employee for an office holder of an opposite party. But as Mr. Justice Marshall says and as this Court has said, since 1949 every member -- not every member of this Court, but I think most recently Mr. Justice White in his decision in Arnett has continuously said the same thing. Congress, the legislature may not be -- the state may not enact a law, the substance of which is that no Republican, Jew or Negro may be employed in public office or is a public employee. And to suggest that the legislature has acted by not acting here seems to me to be irrelevant to the controversy because if the legislature had specifically enacted something to approve this or the Congress --
Warren E. Burger: Does the statutory construction that has something to do with this one, the legislative body acts in one field and doesn’t act in the same area in another?
John C. Tucker: Well, I understand the reference that you make Mr. Chief Justice, but I go back to what I said. If the legislature had enacted a provision specifically doing what Sheriff Elrod does and I think it’s important to look at what the facts here and they’re undisputed and Mr. Foran very frankly admits. The requirement is that in order to obtain and or maintain your job as a janitor or a process server in the sheriff’s office, you have to agree, a) To switch your party affiliation or if you’re unaffiliated to affiliate with the Democratic Party of Cook County, not just the Democratic Party because there are other democrats in Cook County besides the regular organization. You have to agree to affiliate with that organization and to work for and support it’s entire slate of candidates not only for sheriff, but down the line.
William H. Rehnquist: Is it also agreed that these plaintiffs obtain their job through the operation of that same system?
John C. Tucker: It is not agreed on the record that they obtained them on the basis of the system Mr. Justice Rehnquist because the record is silent. It is of record that the named plaintiffs in this case had republican sponsorship at the time that they came into their jobs. It’s not clear in the record as to what that entailed whether the same kind of affirmative support of a particular county party ticket was required.
Byron R. White: Now, now would you -- I take it you would be here making the same kind of argument if there were a state law, state statute or state constitutional provision which said we are not now enacting any rule that only Democrats or Republicans may work for the state Government. What we’re saying is that whatever party wins the election must staff the state Government. From bottom to top and whoever wins the elections runs the Government.
John C. Tucker: Yes sir. I would be here making the same argument because that would be in substance to the statute saying that no Republican, if a Democrat wins the office shall be a public employee during that term of office.
Byron R. White: Although the fact that -- although the fact that a Republican gets selected Governor automatically takes care of the Democrat and he -- the Republican moves in and runs the state Government?
John C. Tucker: Yes sir.
Byron R. White: I mean, whoever wins the election runs the Government?
John C. Tucker: That’s correct.
Byron R. White: Now what’s wrong -- what’s the difference between the legislature saying, “Well, we’re going to replace this Democratic Governor because the Republican won the election” and saying that, “Well, he can only replace the elevator operator”?
John C. Tucker: I think that the Governor has been elected by the people of the state to hold the --
Byron R. White: If the state law says if you win the election you also replace the elevator operator?
John C. Tucker: Well, but the state law, I understand you, this is a hypothetical state law, Mr. Justice White that you’re --
Byron R. White: But it’s not that different from this one?
John C. Tucker: Alright, and I suggest that what this Court has said and every member of this Court over the years since 1949 or every successive Court including yourself, Mr. Justice White in Arnett is that that kind of a law either --
Byron R. White: Well, this is a neutral law. This is a neutral access, whoever wins the elections can work for the Government.
John C. Tucker: Well, it is not a new --
Byron R. White: Republican or Democrat.
John C. Tucker: Oh, I misunderstood--
Byron R. White: Or socialist or communist, whoever wins.
John C. Tucker: My understanding of the law that you propose is one that says that when a Republican is elected Governor, no Democrat shall be permitted to serve in the public service, is that it?
Byron R. White: Or to put it the other way --
John C. Tucker: Or the other way --
Byron R. White: -- whoever wins the election, staffs the Government.
John C. Tucker: Alright, think that the -- where the -- that Mr. Justice Stewart’s opinion in Sindermann and all of the opinions going back to Wyman and that precede that make it clear that that cannot be the law because it involves giving up and requiring people as the price of public employment to give up their fundamental First Amendment rights. And I think that if Sindermann means anything and if Wyman mean anything and all of the cases that have said that you cannot require people to give up their fundamental rights as the price of public employment, if those cases mean anything, they mean that you cannot come into office or while in the office make a requirement of public employment --
Byron R. White: Except for 500?
John C. Tucker: Except for 500, you mean the policy-making?
Byron R. White: (Inaudible)
John C. Tucker: Well, I think that that’s a distinction that has been drawn and worked in many other areas, Mr. Justice White and one that is clearly appropriate in light of the function of Government and the way in which the Government operates in an elective process. But when you’re talking about non-policy making employees, I think that you have to follow the line of cases and afford these people their fundamental constitutional rights and if when you say that they will be deprived of those rights or that they can be discharged or kept from public service by virtue of their exercise of their fundamental freedom of political expression, then you are doing by indirection that which you could not do directly which is exactly what Mr. Justice Stewart expresses.
William H. Rehnquist: Is your only exception for policy making -- the reason I want to give you an example, Arizona has a corporation commission consisting of three members who are elected and who were highly political and they have an executive secretary who has no policy-making responsibilities whatever. He simply hangs around, so to speak, and will inscribe the commission’s orders on the docket sheets. I would say under your definition, he is not a policy-maker at all. Can they not, if the party control, or corporation commission changes, can a new majority not replace him under your theory?
John C. Tucker: I think they could because I think that as Mr. Justice Stevens in the Lewis opinion indicated there are certain kinds of positions, which are of such a personal nature. For example, it maybe that -- let’s just take the sheriff’s personal chauffeur who maybe a person who is certainly isn’t making any policy. When a new sheriff comes in, I am not suggesting that he has to keep the old sheriff’s personal chauffeur or bodyguard. It maybe that he has to use that person or move that person into another capacity if he is qualified for it in the sheriff’s office rather than just firing him because he is a Republican or a Democrat but he’s certainly entitled to have this own man driving his car and I think the example you give me is the same kind of thing. Furthermore, I think it’s important that everybody understand that we’re not asking this Court to create and the Seventh Circuit again made it very clear that we’re not creating a super civil service. The question -- the only thing that is being done here is to say not that these people have tenure, not that they can’t be fired for any reason whatsoever, but simply that if the sole reason they are discharged is because of their exercise of their freedom of speech, freedom of political expression and if they can bear the burden of proof of showing that then they have a claim for violation under 1983 for violation of their fundamental First Amendment right.
Lewis F. Powell, Jr.: Mr. Tucker?
John C. Tucker: Yes sir.
Lewis F. Powell, Jr.: In line with what you’re just saying, if you prevail in this litigation as a practical matter, won’t you set the stage for every non-civil service government employee, local, state and national to contest any discharge on the ground that it is politically motivated?
John C. Tucker: I don’t believe so or perhaps I should put it on another way, Mr. Justice Powell. It is clear that the rule for which the Seventh Circuit adapted does create or recognize that there are certain things in this instance the exercise of the First Amendment rights for which the people may not be discharged, therefore, persons who are discharged, I suppose could allege that they were discharge for political reasons. However --
Lewis F. Powell, Jr.: Whenever they are discharged by someone in the opposite party --
John C. Tucker: Yes.
Lewis F. Powell, Jr.: Would you not think it very likely that the individual would think the reason was political? There must be hundreds of thousands of non-civil service employees at Government levels all over our large country. I’m just wondering about the extent to which your position would not breed a vast flood of litigation?
John C. Tucker: I understand that question and my answer to it is three things, three-fold. Number one, this is a vastly different thing than a civil service system in which there is a presumption where that the office holder has to show a cause for firing and go through a whole panoply of due process rights and so forth. The burden in these cases would be on the discharged employee. The burden of proof would be on the discharged employee to show that the sole reason for his discharge was the exercise of First Amendment rights. That the very placement of that burden on the employee in this kind of a situation in my judgment makes it clear that there would be very little problem in terms of enforcement. Now, there is some history in this regard. In the Seventh Circuit we have history based on two things. Number one, we have the so-called Shakman consent decree, and number two, we have had the decision in Shakman and in the Lewis opinion for four or five years. There have been a grand total of I believe four enforcement proceedings under the Shakman decree, in that entire period of time with many, many thousands of workers covered. There have been I think five or six cases filed under the general provisions of Shakman and Lewis and in that whole period of time in the entire Seventh Circuit and I think in each instance, the only people who filed those suits in one instance was the Public Employees Union in Lewis, which resulted in the Lewis decision, another one is this case, which again is filed as a class action in the situation where the violation is admitted and flagrant on the record and no dispute about that. And the others were three or four cases in which after Governor Walker became Governor, people in much higher levels brought actions, which in each instance resulted in the determination that they were policy-making employees and therefore not covered. I think that if you look at it in those terms you can see that any concern or any interim argument based on the idea that there would be a flood of litigation arising from this kind of a determination is simply not justified. At the same time, I cannot answer your question without also saying that we are dealing here with the protection of fundamental First Amendment rights. There is no one else to protect these rights. There is no procedure in Illinois, administrative state law or otherwise. If the sheriff of Cook County or other officeholders throughout this country utilized the public payroll in their election to public office and the tax money that the tax payers provide them for the purpose of soliciting an army of partisan workers, while in doing so and in order to do so requiring those persons to forfeit their fundamental rights under the Constitution, it’s -- yes sir.
Lewis F. Powell, Jr.: I’m interested in your saying they’re forced to forgo constitutional rights. All of the respondents and everyone of these people you are talking about accepted the employment under the system you are now attacking. Do you think there’s anything at all to the argument advanced by your brother that they waive any constitutional right they may have had?
John C. Tucker: No, I don’t Mr. Justice Powell.
Lewis F. Powell, Jr.: They knew what they were doing. They understood the system.
John C. Tucker: Assume those things to be true. It’s not necessarily clear on the record, but assume those things to be true. It doesn’t seem to me and I think that in their reply brief they’ve basically admitted and agreed that there can be if there are fundamental constitutional rights involved here, there can be no waiver applied in this situation by any construction of the law of waiver when you’re dealing with First Amendment rights. But forgetting about looking at it from the legal standpoint and analyzing whether there could be a waiver of constitutional rights here, I don’t think that the, and you can phrase this in terms of the “live by the sword, die by the sword” analogy or any other kind of phrase that expresses that same idea. I don’t think that that can be applied to the situation. In the first place, the people that are involved here, non-policy making employees of public agencies are the people who are least in the position to exercise the election of going elsewhere in order to preserve their constitutional rights. They’re people who applied for and need jobs. They are compelled in order to receive those jobs, to get those jobs, to agree to forgo their constitutional rights.
Warren E. Burger: You’ve already said, isn’t that right, to that of the sheriff’s chauffeur and his bodyguard?
John C. Tucker: With respect to the particular job as chauffeur/bodyguard, yes, because of a personal loyalty or personal connection that maybe required there.
Warren E. Burger: Does it have anything to do with policy-making? It isn’t exclusively confined to policy-making, is it?
John C. Tucker: I think, Mr. Justice -- Mr. Chief Justice that we have to be practical about it in any kind of a situation of this sort and what I’m saying is that the personal chauffeur for the sheriff may have to be your -- the sheriff probably has the right to reassign him to be an elevator operator from whence he came, if that’s from whence he came rather than or a driver in the rest of the department. I don’t think that the Constitution requires --
Warren E. Burger: Who’s going to decide that?
John C. Tucker: The sheriff.
Warren E. Burger: Yes, but who’s going to decide whether the sheriff must give him another job, a judge?
John C. Tucker: Well, I don’t think anybody is going to say he has to give him another job. If the sheriff discharges him and as a practical matter if he exercises as occurred here, the patronage function by discharging large numbers of people, a lawsuit maybe filed alleging that this person and others were discharged solely because of their political affiliation and if the burden of proof can be sustained then that person will recover.
Warren E. Burger: Suppose, instead firing large blocks, he fired only one man for -- does that change the first -- the fundamental First Amendment rights?
John C. Tucker: No sir, it does not.
Warren E. Burger: When you’re talking about for that one man?
John C. Tucker: No, and if he could prove that he was discharged solely for the exercise of his fundamental constitutional rights he would have a claim. I think that the chances are very many people -- you see, the decision of this Court Mr. Chief Justice and I might say, generally, the decisions of this Court are generally respected by the people of this country, including public officials. And if this Court declares, as it seems to me any analysis of the applicable constitutional law requires, declares that these practices are violative of fundamental constitutional rights, public officials will start obeying the law just as the public officials in Cook County have been obeying the law under the Shakman decree to the result that there has been almost no litigation as a result of it. Public officials are not about to come out and flaunt the decree of the Supreme Court of the United States when it declares that fundamental constitutional rights are entitled to protection in this area. And it is for that reason among others that there is not, in my judgment, a great problem in terms of any flood of litigation. But the Court has the duty to vindicate those rights. That’s if there is any -- if there is any clearer function of the Court, I don’t know what it is than to vindicate the basic and fundamental constitutional rights. We started this or I intended to start and I guess I’ll end instead with Mr. Justice White’s question to Mr. Foran, what governmental interest -- what governmental interest is served for fundamental constitutional rights to be able to be infringed or to make as a infringement a condition of public employment, there has to be a governmental interest.
Warren E. Burger: Your time is up.
John C. Tucker: Thank you, Mr. Chief Justice.